Local Authority v M & Anor

These are adoption proceedings. I am giving this judgment in public because there is, I am satisfied, a pressing need for the events I am about to describe to be brought to the attention of the appropriate public authorities and, indeed, of the public at large.

This is merely the latest, though I fear it will not be the last, of a number of cases of inter-country adoptions where not merely has the process ended in disaster for the child but where that process has been facilitated by the criminal misconduct of so-called professional persons operating commercially in this country.

Similar problems have been high-lighted in the past in reported judgments of judges of the Family Division: see the decisions of Johnson J in Re C (Adoption: Legality) [1999] 1 FLR 370 and Re J-S (Private International Adoption) [2000] 2 FLR 638 and of Kirkwood J in Flintshire County Council v K [2001] 2 FLR 476. In each of those cases the judges commented in stringent – indeed damning – terms about the inadequacies of so called ‘home study reports’ prepared by so-called ‘independent social workers’ in support of applications by citizens of this country to adopt children in foreign jurisdictions. It is my melancholy duty to have to make similar complaints about the home study reports prepared in the present case.

It is high time that this evil and exploitative trade was stamped out. It is a trade because, however it is dressed up, it involves the buying and selling of babies by intermediaries who pocket most of the large sums of money which change hands during the course of the transaction. It is evil and exploitative because it battens on would-be adopters who, unable to adopt through more conventional channels, are induced in their desperation to part with large sums of money to intermediaries whose motives are purely mercenary; because it battens on the emotional turmoil of disadvantaged and desperately vulnerable birth mothers who are induced to part with their babies within days of birth, who see little of the large sums of money paid to the intermediaries by the adopters and who too often, as in the present case, soon come to regret their hasty and ill-considered decision; and because it can cause untold harm to children, untold misery to their birth mothers and untold heartache to adopters.

To that end I am directing that copies of this judgment are to be sent to a number of public officials so that what I hope will be effective steps can be taken at least to put a stop once and for all to the shameful and indeed criminal activities of the so-called independent social worker involved in this case.

M was born in January 2000 in Houston in the State of Texas in the United States of America. Both her birth mother A, born in 1980, and her birth father B, born in 1976, are black African Americans who were born in and appear to have been normally resident at the time in Chicago in the State of Illinois, They were not married at the time: a fact confirmed by B personally to the guardian in July 2002. It is apparent that A moved to Texas immediately before, and specifically for the purpose of, the birth and subsequent adoption.

Prior to her birth arrangements had been made for M’s adoption by C, born in 1957, and C’s husband D, born in 1956. C and D were white citizens of this country, resident at that time within the area of a local authority which I shall refer to as “Authority X”. They had met in 1993 and married in 1999.

The arrangements had been made on their behalf in the United States of America by Blessed Trinity Adoptions Inc, a body licensed by the Texas Department of Human Services on 14 June 1991 under the Human Resources Code, Chapter 42, as a child placing agency providing foster care placements and adoption services. As can be seen from the published report of Johnson J’s judgment, it was the agency involved in Re J-

In this country the arrangements were made by Jay Carter who, describing herself on her notepaper as an “independent social worker” and “counsellor”, operates from an address in the north-east of England. Although he was not identified by Johnson J in his published judgment, I am told by the guardian’s solicitor that Jay Carter’s husband was the author of the home study report which was excoriated by Johnson J in Re C. And although Johnson J likewise chose not to disclose her identity in his published judgment, it is apparent from papers I have seen that Jay Carter was the independent social worker whose home study report was similarly condemned by Johnson J in Re J-S. Jay Carter was also the worker whose home study report was condemned by Kirkwood J in the Flintshire case. She provided a number of home study reports in the present case. They are lamentable documents.

As I have said, A moved to Texas immediately before, and specifically for the purpose of, the birth and subsequent adoption. It seems that she was told by Blessed Trinity Adoptions Inc that she must come to Texas for the birth. They sent a taxi to her home in Chicago to take her to the airport and provided a flight. Her baby was born on arrival in Texas.

Only three days later A signed before two witnesses and a Notary Public in Texas an ‘irrevocable mother’s affidavit of relinquishment of parental rights to licensed child-placing agency’. By that document A said:

“I freely, voluntarily, and permanently give and relinquish to” Blessed Trinity Adoptions Inc “all of my parental rights, privileges, powers and duties. I consent to the placement of my child for adoption by this agency.”

Four days later – when M was just seven days old – the Honorable Robert J Kern, Judge of the Family District Court of Fort Bend County, Texas, 387th Judicial District, made a temporary order that Blessed Trinity Adoptions Inc serve as Temporary Managing Conservator of M, with power to appoint D and C, the potential adoptive parents, to act on behalf of Blessed Trinity Adoptions Inc and in the best interest of the child, and to allow the child to travel overseas.

Four days later – when M was still just eleven days old – C arrived with M at Gatwick Airport, having travelled on a temporary one year passport issued by the United States Department of State, Houston Passport Agency, the day before. On arrival at Gatwick they were detained for questioning by United Kingdom immigration officers. Permission was given for M to be brought into the country on a temporary basis, She went to live with C and D within the area of Authority X. An application was made to the Home Office for indefinite leave for M to remain in the United Kingdom (see a letter from the Immigration and Nationality Directorate of the Home Office dated 18 October 2000).

On 1 September 2000 there was a further hearing in court in Texas. C and D attended.

On 18 November 2000 B was served with a citation to relinquish his parental rights of M.

On 22 December 2000 Judge Kern made a decree of adoption, finding that M had no living parent whose parental rights had not been terminated by final judicial decree and that the adoption was in the best interests of M. He ordered and decreed that her adoption by D and C be granted and that the parent-child relationship should henceforth exist between her and them.

On 16 May 2001 the Immigration and Nationality Directorate of the Home Office wrote to say that M had been granted indefinite leave to remain in the United Kingdom.

In May 2001 C separated from D and went with M and her two youngest children, her daughters E and F, to live in the area of another local authority which I shall refer to as “Authority Y”.

On 2 August 2001 C committed suicide.

M was placed with friends of the family, G and H. On 9 August 2001 the case was referred to a local authority which I shall refer to as “Authority Z”. On 14 August 2001 D informed Authority Z that he did not wish to have M returned to him. On 11 September 2001 G and H told Authority Z that they could not continue to care for M. On 14 September 2001 M was voluntarily accommodated by Authority Z with the foster-carers with whom she remains.

On 29 November 2001 D returned signed consent forms permitting Authority Z to proceed with long-term planning for M and her placement for adoption.

On 14 February 2002 Authority Z issued an originating summons seeking that M be freed for adoption. It is that summons that came before me for hearing on 30 April 2002, 24 July 2002, 25 September 2002 and finally on 16 December 2002.

As can be seen, M’s adoption by C and D has turned out to be a disaster. Within only five months of the making of the adoption order in December 2000 C and D had separated. Three months later C was dead by her own hand. D, not to put too fine a point on it, has simply abandoned M.

But one does not need the advantage of hindsight to be able to see that this was an adoption that should simply never have been allowed to take place. I think I can say with absolute confidence that no court in this country, armed with all the information which was available at the time the adoption order was made, would have contemplated allowing C and D to adopt M or indeed any child. And I cannot help thinking that my colleague in Texas would probably have been equally concerned had he not been misled by the seriously deficient reports on the basis of which he made his orders.

I am conscious that C, now dead, is unable to defend herself and that D, albeit through his own choice, has played no part in the proceedings before me. But the evidence before me demonstrates that the following information, all of it highly relevant to the question of whether C and D were suitable people to be adopting a child – any child – was available at the time the adoption order was made:

I should add that information supplied to Authority Z by C’s mother after her daughter’s suicide suggests that the marriage with D was in difficulties as early as the spring of 2000 and that C had committed suicide because she was very depressed and could take no more of D’s behaviour.

Before I come to describe the involvement in this case of Jay Carter and Blessed Trinity Adoptions Inc I need to return to the authorities I mentioned above. All bear a striking resemblance to the present case. It is convenient to take them in chronological sequence, starting with Re C.

Johnson J gave judgment in Re C on 12 May 1998. It was a case of an adoption in Guatemala. The home study report in that case, as I have said, was prepared by Jay Carter’s husband. Johnson J described it thus (at p 375F):

“The report is striking for its superficiality. There were obvious and vital issues raised by the application to adopt J which are not even mentioned in the report. Nothing is said about the ability of the applicant and her parents to understand the issues raised in any adoption, still less the emotional and cultural needs of a child adopted from one culture into another. There is nothing about the sensitivity of the applicant to the needs of the child as distinct from her need to parent a child, Although the applicant told me that she informed Mr A of her previous rejections as an adopter in this country, nothing about this appears in the report.

His report describes Mr A as a member of a particular panel of guardians ad litem and the supporting affidavit sworn by him states that he has been authorised by the British Association of Social Workers to prepare such reports for use in overseas adoption applications.

Like others who have seen this and indeed other reports by Mr A, I record my concern that a report of this quality should have been prepared by someone upon whose judgment as a guardian ad litem reliance will be placed by courts having vital decisions to make about children.”

Johnson J then went on to consider whether the author of such a home study report is guilty of offences under sections 11 and 57 of the Adoption Act 1976.

“(1)

A person other than an adoption agency shall not make arrangements for the adoption of a child ... unless [not material].

…

(3)

A person who ... contravenes subsection (1) ... shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine or to both.”

Section 57 provides, so far as material that:

“(1)

... it shall not be lawful to make or give to any person any payment or reward for or in consideration of... the making by that person of any arrangements for the adoption of a child.

(2)

Any person who makes or gives, or agrees or offers to give, any payment or reward prohibited by this section, or who receives or agrees to receive or attempts to obtain such payment or reward, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine ... or to both.”

As Johnson J pointed out, the words “make arrangements” are the subject of definition in s 72(3):

“For the purposes of this Act, 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 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.”

Having considered a number of authorities on the point, including in particular, the decision of Hollings J in Re An Adoption Application [1992] 1 FLR 341, Johnson J concluded that the author of such a home study report commits offences under both section 11 and section 57, essentially because, as he put it at p 378D, the author of such a report is “making an agreement or arrangement for facilitating the [foreign] adoption”. As he commented at p 379H,

“The reality is that these privately commissioned home study reports are sought simply to support, the statutory word is facilitate, the adoption application overseas.”

I entirely agree with Johnson J’s reasoning and conclusions. The point obviously needs re-stating clearly and starkly the author of such a home study report commits criminal offences under both section 11 and section 57 of the Adoption Act 1976.

I should add that as Kirkwood J pointed out in the Flintshire case at p 486H Johnson J’s view of the effect of section 72(3) of the Adoption Act has now been made explicit by section 72(3A) which came into force on 31 January 2000

“In this Act 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.”

On 6 July 2000 Johnson J gave judgment in Re J-S. The home study report in that case, as I have said, was prepared by Jay Carter, obviously some little time after the earlier judgment in Re C. She was quite plainly undeterred by anything Johnson J had said. He described her report thus (at p 640D):

“It is surprising too that the Blessed Trinity Adoptions Inc made the important decision as to where NG should be for the rest of her life and by whom she should be brought up on the basis of a report which I have read. It is from a supposedly independent social worker. It will be observed from the report that the lady concerned does not purport, in the document at least, to have any professional qualifications for the enormously important task conferred upon her, reporting as she was about a family resident in England for the benefit of an adoption agency in Texas. Again, simply to illustrate the gross inadequacy of the report, the author of the report clearly made no inquiries of the local authority in whose area the family lived in England. Again, it may be a matter of concern that neither the author of the report nor anyone involved with the Blessed Trinity Adoptions Inc seemed to have paid any regard to the arrangements that have been put in place by the UK Government for inter-country adoptions. One would suppose that agencies such as Blessed Trinity Adoptions Inc and the supposed independent social worker would have been familiar with the existence in all countries of guidance such as we have here in the UK, published by our Department of Health, to assist in this important work being carried out in a way that safeguards and promotes the welfare of children. Some of these matters constitute offences contrary to the criminal law of the UK, those offences being committed by Mr S and by the author of the report.”

Kirkwood J’ s judgment in the Flintshire case followed on 9 April 2001. It involved an adoption in Arkansas by an English couple, Mr and Mrs K. The home study report in that case, as I have said, was prepared by Jay Carter. The judgment contains a long passage at p 486B which no words of mine could better and which I propose to set out in full. Kirkwood J said this:

“Before moving on to address the care proceedings before the court, I say a word or two about the home study report obtained by Mr and Mrs K from C.

In 1997, the Department of Health produced a ‘Guide to inter-country adoption and procedure’, to establish arrangements for the proper preparation of applicants, and the proper preparation of applications for adoption to be made overseas. Not only do the arrangements identify sources of advice, but they make provision for the preparation of objective, independent home study reports by qualified and experienced adoption social workers. They also provide arrangements for Home Office immigration entry clearance and other matters, and they provide for the issue of a Department of Health certificate that the Department of Health considers the material to be in order and supports the application The purpose of the procedure is to ensure that all is in order at the UK end for an adoption in an overseas jurisdiction by applicants from the UK.

Mr and Mrs K did not follow the procedure. They did not seek a Social Services Department Home Study Report, which would have accorded with both UK requirements and those of the authorities in the US. Instead Mr and Mrs K commissioned and paid for a report privately.

The hazard to children of such a practice is highlighted by the Department of Health:

“The findings and opinion of a private social worker commissioned by a prospective adopter cannot therefore be substituted for the judgment of the authority. Such social workers take no responsibility for the circumstances in which their recommendations are used, nor are they accountable to anyone for consequences which may flow from that use. Private reports are provided solely as a service to prospective adopters. Adoption agencies, including local authorities, are part of a statutory adoption service and under a duty to give first consideration to the child’s interests.”

In Re C (Adoption: Legality) [1999] 1 FLR 370, Johnson J held that the commissioning and making of such a report was a breach of the restriction on making private arrangements for an adoption within the meanings of ss 11 and 72(3) of the Adoption Act 1976, and that the payment for such a report was an unlawful payment within the meaning of s 57 of the Adoption Act 1976. Indeed, contravention of s 11, which restricts private arrangements for adoption, was made explicit by an amendment to the Adoption Act 1976, which came into force on 31 January 2000, just 5 days after C’s report in this case. That amendment makes clear that arrangements for an assessment are included in the provisions of s 11 of the Act, and that such is an offence liable to process in the criminal courts. (Adoption (Inter-Country Aspects) Act 1999, s 13.)

I have considered also a further decision of Johnson J, Re J-S (Private International Adoption) [2000] 2 FLR 638.

I have had the advantage of seeing the report prepared by C in this case and dated 26 January 2000, C is described as ‘Independent Social worker/counsellor’. There is no reference to any qualification, experience or other credentials as a social worker, as a counsellor, or as a proper person to report to the court on such an important matter. Anybody can describe themselves as C did. The report itself is full of platitudes. It makes no reference to any inquiry of the relevant Social Services Department, which, if authorised by Mr and Mrs K, and made, would have revealed at least concerns about the parenting of Mrs K’s daughter KA in 1996 and of the two boys in 1999. It is in many respects superficial and shallow. It scarcely addresses the suitability of Mr and Mrs K to parent a black child. It says nothing about their suitability to manage twins. The report is, in my judgment, useless for any purpose other than supporting an application - any application - by Mr and Mrs K to adopt any child in whatever overseas country they chose. It is, on the other hand, dangerous, in that it misleads both by the tone of what it says and by what it does not address at all, and in that an overseas court could not have the data to perceive such shortcomings.

Overseas courts may well wish to view any such independent reports as may still arise with extreme caution. They may also wish to look for a Department of Health certificate. UK adoption policy and law expect the assessment of UK applicants for adoption overseas to be made with the same care and thoroughness as for adoption in the UK. A two-tier system, applying lower standards in respect of adoption of a child from overseas, is wholly unacceptable. But experience shows that that is what happens, not always but all too often, with privately commissioned home study reports.

I have given consideration to current proposals for reform in the laws of adoption. Not surprisingly, there is nothing whatever in those proposals to suggest a relaxation of the rigour with which proposed adopters should be assessed for their suitability in accordance with contemporary criteria. That is surely because, whatever sympathy there may be for those needy for themselves to adopt, the welfare of children must at all times be the overriding consideration.”

I respectfully agree with every word of that.

The Adoption and Children Act 2002 is not yet in force. When it comes into force the Adoption Act 1976 will in large measure be repealed. But the provisions of sections 11 and 57 of the 1976 Act, including those provisions bearing on the unlawfulness of home study reports, are re-enacted in similar and equally stringent terms: see sections 92(1), 92(2)(g), 94(1) and 95(1)(e) of the 2002 Act. Sections 93(1), 94(2) and 95(3) make breaches of these provisions criminal offences.

In Re C Johnson J added this comment at p 377F referring to section 11:

“I do not know whether there have been any prosecutions under this section but they must be extremely rare because breaches of the section seldom become apparent within the 6-months’ limitation period which applied to summary prosecutions.”

This problem, which applies likewise in relation to section 57, was also highlighted by Bracewell J in Re R (Inter-Country Adoptions: Practice) [1999] 1 FLR 1042 at p 1054B. The position remains unchanged under the 2002 Act: see sections 93(5), 94(5) and 95(4).

It might be thought a matter for consideration whether this apparent limitation on the efficacy of the criminal law is satisfactory. It would seem that at present people like Jay Carter are able to flout the criminal law with impunity.

Following her meeting with Authority X’s adoptions and fostering social care team in August 1999 (when, as I have said, she was counselled out of an adoption), C contacted Jay Carter. That, I should emphasise, was done quite independently and without the knowledge of Authority X. Jay Carter wrote to her on 10 September 1999:

“Thank you for your inquiry regarding overseas adoption.

Please find enclosed Documents Checklist, Home Study Checklist and Agency information. My fee for the preparation of a Home Study Report is £500 plus travelling expenses based on standard class rail travel.”

One of the enclosed documents, Blessed Trinity Adoptions Inc’s Fee schedule 1999-2000, quoted a fee, exclusive of the legal costs of the adoption itself of $19,000-$21,000 A copy of that document was countersigned by C and D on 5 October 1999.

It is not clear to me what fees were actually paid by C and D. The birth mother, A, told the guardian that C had given her $1,000. In the autumn of 2000 C and D paid a further $854 to the attorney in Texas acting for them in the adoption proceedings. There is evidence to suggest that, in all they paid £18,500. Apparently they raised the money by re-mortgaging their home. There is nothing to show that A or B ever received any of this money other than the $1 000 paid direct to A by C.

Also on 5 October 1999 though it was sent to C under cover of a letter dated 8 October 1999, and undeterred by anything Johnson J had said in Re C. Jay Carter signed, as ‘Independent Social Worker’, what was referred to in her letter as a Home Study Report Jay Carter apparently made what was called a ‘Post Placement Report’ in January 2000 though I have not seen it. She made her third and final report described as a Post Placement Update Report on 16 August 2000 still quite undeterred by anything Johnson J had said in Re C and Re J-S.

The two reports I have seen (and I have no reason to think that the other was any better) are deeply flawed and grossly inadequate documents. Most of the comments made by Johnson J in Re C and Re J-S and by Kirkwood J in the Flintshire case about the home study reports they were concerned with apply equally to the reports prepared by Jay Carter in the present case. They are superficial, shallow, full of platitudes and gloss over important issues. They give no details of Jay Carter’s credentials, qualifications or experience. Although the first report sets out the previous marital histories of C and D as I have summarised them in paragraph [26(i)] above, neither of the reports really addresses the concerns about the stability of C’s marriage to D which her four previous failed marriages obviously raised. Neither of the reports even begins to address the many other obvious and very worrying issues raised by C’s history. Indeed neither report even mentions any of the matters to which I have referred in paragraphs [26(ii)-(xiv)] above.

But these reports are worse even than that. They are positively and dangerously misleading, not merely by what they do not address but also by both the tone and the content of what they do say. The first report described C as “fit and healthy”, omitting to mention both her cancer and the hospital admissions resulting from her overdoses and alcoholic excesses. A wholly misleading explanation was given for C and D’s inability to adopt through more conventional channels (“the sociological environment in England is such that there are very few children, and even fewer babies available for adoption. This, together with their ages, meant that this couple would not be considered by Social Services as suitable to adopt in England”). The first report concluded with this recommendation:

“it is my view that they have the skills necessary to meet the needs of an adopted child. In all of the circumstances ... I think [C] and [D] are a suitable couple to adopt a child from America.”

It beggars belief that anyone who had conscientiously researched and evaluated this couple could have come to such a conclusion a conclusion expressed, it may be noted without any meaningful reservations or qualifications The most charitable explanation –and even this reflects the greatest discredit on Jay Carter – is that the author of the report somehow thought it appropriate to produce such a report and to express such views without having conducted the necessary investigations and without referring to the glaring limitations of the exercise she had conducted. This, it must be remembered, is the report on the basis of which Judge Kern was induced to make the order in January 2000 which enabled M to be removed from the United States of America and brought to this country.

Jay Carter s final report is no better. It does not advert to any of the matters omitted from the earlier report. It does not deal at all with the matters referred to in the report which by then had been produced by Authority X (see below). It concluded:

That conclusion is as flawed and worthless as the similar conclusion in the first report. It is a conclusion which, assuming it to be honestly expressed, displays such a lack of elementary standards of professional care and competence as to render its author unfit on that ground alone ever to be involved in such work again.

In January 2000 Authority X became aware of M’s existence and of her presence within its area. It is apparent from letters which it wrote on 27 March 2000 and 11 May 2000 to the solicitors acting for C and D, that Authority X considered itself as acting primarily in accordance with its duties under the Children (Private Arrangements for Fostering) Regulations 1991 but that it also saw its role as being to provide Blessed Trinity Adoptions Inc and the court in Texas with “reports from the Social Workers as to [M’s] circumstances and progress”.

Authority X has helpfully explained the circumstances in which it came to adopt that stance. M arrived in the country without warning. Once it knew of her arrival, Authority X took steps to ascertain the basis upon which she had been brought into the country. It was careful to clarify the nature and extent of the order that had been made in Texas. Investigations disclosed that although the order was temporary, it was valid in Texas and recognised as valid within England and Wales. Nonetheless, Authority X remained deeply concerned about the process by which C and D had “acquired” M. It therefore took advice both from BAAF and from the relevant central government authority. The advice received was that it should treat M as a child who was being privately fostered and should act in accordance with its duties under the 1991 Regulations. That it therefore did. However, and very properly, Authority X considered that it needed to take further action. It was aware of C and D and of their history as summarised in paragraph [26] above. It was understandably concerned that neither the court in Texas nor the author of the ‘home study report’ had contacted it and asked for any information about C and D, let alone their suitability to adopt a child. Authority X became aware of previous criticisms made of the “work” in this field of Jay Carter and her husband. Indeed, Authority X eventually became involved in the police investigation into the involvement of the Carters in private international adoptions. It therefore determined that the court in Texas and Blessed Trinity Adoption Inc should be notified of the previous history of C and D as known to the local authority.

At about the same time Authority X contacted International Social Services and alerted them to the concerns it had about Jay Carter and her role in this and similar cases. International Social Services made enquiries to ascertain if it was possible to intervene in the adoption process in Texas. The information relayed to Authority X was that it was not possible. However the authority’s legal adviser did write, and more than once, both to the court in Texas and to Blessed Trinity Adoption Inc. In particular, by letters dated 23 May 2000, the court and the agency were clearly informed that as from 31 January 2000 home study reports could only be provided by or on behalf of an adoption agency and that Authority X would be willing to undertake that function in this case.

The court in Texas apparently did not respond to any of the letters, nor did it request any report.

Nonetheless, a social worker employed in Authority X’s child care team, prepared a report on M dated 10 August 2000. A copy of that report was sent the same day under cover of a letter to C and D’s solicitors indicating that it was intended to forward the report both to Blessed Trinity Adoptions Inc and to the court in Texas. That indeed was subsequently done.

This report certainly did not display such egregious failings as the reports prepared by Jay Carter. It was, however, in certain respects – at least judged with the benefit of hindsight – an unfortunate document. Seventeen of its twenty-six numbered paragraphs were, appropriately and helpfully, taken up with the history which I have summarised in paragraph [26] above. But that history was set out without comment and without any attempt either to evaluate it or to explain its possible significance in the context of M’s proposed adoption. Four paragraphs of the report summarised Authority X’s involvement with the case since M’s arrival in this country. Four paragraphs described the author’s four visits to see C, D and M at their home. These painted a reassuring, if somewhat superficial, picture of things (“[M] has appeared to be thriving ... she appears to be quite a contented baby ... Conditions in the home are good”). The author reported, without comment, what she had been told by C and D about C’s health, about the state of their marriage, about the stability of M’s placement with them and about their plans for supporting M in relation to issues of identity.

The final paragraph of the report set out this ‘Conclusion’:

“This information is provided for use of the Texan Courts and The Blessed Trinity Adoption Inc Texas The author of the homestudy report regarding [D and C] has made no known previous enquiries to [Authority X’s] Social Care Department. This report, then has been compiled to inform the Court and Adoption Agency of the previous known social work involvement together with the current social work involvement.

It is the intention therefore, of [Authority X’s] Social Care until such a time as an Adoption Order might be made by the Texan Courts.”

Recognising, as I do, the limited function that Authority X understandably conceived itself as performing, I have to say that I still find this report a somewhat disappointing document. It made no attempt to analyse, explain or evaluate any of the “information’ it provided. It contained no expression of professional opinion, indeed no comment at all, on any of the many points that surely cried out for cool and (in both senses of the word) critical comment. It failed to explain for the benefit of a judge who sitting in another jurisdiction, could not be expected to appreciate these things, the significance of the fact that Jay Carter had made no enquiries of either local authority and of the fact (not drawn to the judge’s attention) that the preparation of the homestudy report referred to involved the commission by its author of criminal offences under English law. It did nothing to discourage the judge from making an adoption order. On the contrary, the report would, if anything, have led Judge Kern to think that Authority X was assuming that such an order would probably, and appropriately, be made.

Authority X, to its great credit, frankly accepts these criticisms of the report. It now recognises that the report was inadequate. It recognises that it ought to have made explicit the fact that Jay Carter was committing a criminal offence by providing any ‘home study report’ whether before or after 31 January 2000. It recognises in particular that the report should have gone further and made explicit its view that, on the basis of the facts as set out, C and D were not suitable to adopt any child.

But Authority X also points out, and I entirely agree, that the report needs to be evaluated in its proper context. In the first place, Authority X felt constrained from giving its bald opinion that C and D were not suitable to adopt a child by two overlapping factors:

Secondly, Authority X emphasises, and I quite accept, that its genuine expectation – in the event unfulfilled – was that the court in Texas would consider the facts as presented and refuse to make the final adoption order or, at the very least, ask Authority X for any future reports needed for the case.

I entirely accept that Authority X’s actions were well intentioned. And I also, of course, accept that, with hindsight, it genuinely regrets that it did not voice its concerns more loudly and more explicitly. I appreciate that I have the luxury of the priceless gift of hindsight and that it is all too easy to appear to be wise after the event. The important thing now is to look forward. Authority X tells me that it has already taken steps that are designed to ensure that the facts of this case inform, for the better, the manner in which any future such case is handled.

The vital thing, as Authority X recognises, is that any local authority faced with a similar problem in future must not hesitate to inform the foreign court and any other agencies involved, and in the clearest possible terms, (a) that the provision of ‘home study reports’ other than by an adoption agency or its agent is a criminal offence and (b) of matters within its knowledge suggesting that the prospective adoptive parents are not suitable either to adopt at all or (as the case may be) to adopt the particular child involved. What is required in this context is what Megarry J once described (in In re Barbour’s Settlement Trusts) [1974] 1 WLR 1198 at 1202C) as “plain speaking and not obliquity”. Foreign courts and other agencies should not, as he put it, have to “unravel lawyers’ nods and becks and wreathed smiles”. If a local authority finds itself in future in the kind of position in which Authority X found itself in this case in 2000 it must voice its concerns clearly, loudly and explicitly.

Before leaving this aspect of the case there is one other matter I should refer to and would indeed wish to emphasise. My criticisms of the report prepared on behalf of Authority X are not to be taken as directed at its author. She was, I am told, known for her conscientious approach to her work. Whilst she may have been the signatory of the report she was, in the circumstances as I have described them above, necessarily acting in accordance with the advice of her employers. That, I do not doubt, significantly constrained her from expressing herself in the way in which she would otherwise have wished to. She is not, in my judgment, to be criticised.

The proceedings were issued, as I have said, on 14 February 2002.

On 1 March 2002 J was appointed by District Judge Angel to act as Children’s Guardian for M and as Reporting Officer for the father D. The social workers handling the case for Authority Z were K, a social worker working in Authority Z’s Looked After Children Team, and L, a senior practitioner in Authority Z’s Family Placement Team. I should have liked to be able to name these three individuals because, in striking contrast, to certain others involved in this sorry saga, they deserve public recognition for the quality of the professionalism and the commitment they have brought to bear on a difficult and troubling case. But the pressing need to protect M’s identity prevents me doing so. The least I can do is to thank them publicly for all they have done, not merely for M but also, I should emphasise, for her birth parents A and B.

On 25 March 2002 the adoptive father D signed the form attached to the notice of the hearing of the proceedings which had been issued by the court. He stated that he did not wish to oppose the application and did not wish to be heard on the question whether an order should be made. The same day he wrote to the guardian saying “There is no purpose in my meeting with you since ... I have given my consent for an order freeing her for adoption willingly.” He wrote again to the guardian on 11 April 2002 reiterating his consent.

On 30 April 2002 the matter was listed before me for directions. At that stage there were available to the court the Schedule II report dated 11-14 January 2002 which had been prepared by K and the amended Schedule II report, filed pursuant to permission granted by District Judge Berry on 10 April 2002, which had been signed by K on 26 April 2002. Both Authority Z and I were concerned that M’s circumstances had altered so much, and so unexpectedly, since the making of the adoption order on 22 December 2000 that natural justice to them, as much as M’s own best interests, required her birth parents A and B to be informed of the situation. I gave directions that Authority Z communicate both with the Embassy of the United States of America in London and with the birth parents, informing them of the proceedings and inviting them to indicate whether they wished to participate in the proceedings.

On 28 May 2002 the Chief of Special Consular Services at the Embassy of the United States of America in London wrote to Authority Z stating that the Embassy did not wish to make representations in the case, that it saw no need to be represented at the hearing and that “the matter is best left to the discretion of the English Court system.”

On 1 June 2002 the adoptive father D signed the form attached to the notice of the hearing of the proceedings which had been issued by the court on 15 May 2002. He again stated that he did not wish to oppose the application and did not wish to be heard on the question whether an order should be made.

After considerable efforts, and with the assistance of the Department of Human Services in Chicago, the birth parents were located in Milwaukee, in the State of Wisconsin, to which they had moved from Chicago. On 25 June 2002 the birth mother, A, spoke on the telephone to the solicitor handling the proceedings on behalf of Authority Z, saying that she wanted her child back, that she did not know the adoption order had gone through, that it was the worst thing she had ever done and that she was living with the father who also wanted the child back.

On 27 June 2002 Black J gave directions that the guardian “undertake a preliminary assessment of the birth parents’ intentions and in the event they wish to be involved, their circumstances, to include a face-to-face interview with the birth parents in America, if they so wish”, The guardian travelled to Milwaukee where she saw the birth parents, A and B, at the family home on 19 and 20 July 2002 together with their two older children.

On 23 July 2002 the guardian filed an interim report. She reported both the birth parents as wanting M returned to their care. She said:

“From the investigations made so far there is no indication that [M] would suffer significant harm in her parents’ care. Further assessments need to be made in important areas ... More needs to be known about the family’s parenting skills ... It is likely that [M’s] life chances in areas such as education would be diminished by comparison with those available to her in an adoptive placement. The family live in a deprived area, dependent on benefits ... and their literacy skills are limited. If [M] returned to America she would have the advantage of being with her birth family. The indications are that she would have the permanence and security offered to her siblings.”

The guardian had explored with the birth parents the circumstances in which M was adopted. What she was told by the birth mother A included this:

“[C], with Ms Winnell Byrd from the adoption agency drove [A] to the airport to return home to Chicago. [A] became very upset on parting with the baby. She told Ms Byrd that she had changed her mind and wanted to keep the baby. Ms Byrd told her that if she did this the agency would not be able to pay for her return flight to Chicago, and of course she would not be able to keep the $1,000 from [C]. [A] told me that she had no choice at this point as she had two children in Chicago and must return to them ... With the benefit of hindsight she now thinks that she was asked to go to Texas because she would have no means of return without financial support thereby putting pressure on her to relinquish the baby and secondly because in other US States the mother’s consent cannot be given until the child is at least a month old.”

The guardian added this comment:

“[M’s] adoption may have been legally concluded in the jurisdiction in which the order was made but the account given by [A] leads me to believe that, if true, the adoption agency acted unethically in respect of this vulnerable young woman.”

On 24 July I directed Authority Z to make certain further inquiries of the Embassy. On 14 August 2002 the Consul wrote to confirm that M is an American citizen and that there is no impediment to her re-entering and residing permanently in the United States of America.

At the same time I also directed Authority Z to conduct an assessment of the birth parents. For this purpose K and L visited Milwaukee from 22 to 28 August 2002. Whilst there they met with the birth parents on six occasions, also seeing their older children. In addition they met M’s paternal grandmother, spoke to the birth parents’ next-door neighbour, met the oldest child’s pre-school teacher, and had a meeting with the Bureau Attorney and the relevant Site Manager (social work team manager), Ms Carolyn Lee, at the Bureau of Milwaukee Child Welfare.

Their report is dated 12-13 September 2002. Their conclusion was unequivocal:

“[M] should not be returned to her birth parents ... because we believe that [M] would be at risk of significant emotional and possible physical harm.”

I should emphasise that, whatever the possible outcome, Authority Z has been throughout these proceedings, and rightly so, supportive of an investigation into the birth parents’ circumstances.

In the meantime, on 28 August 2002, the Immigration and Nationality Directorate of the Home Office wrote confirming that M was granted indefinite leave to remain in the United Kingdom on 16 May 2001 (this on the basis of her adoption in the United States of America) and that the Secretary of State did not wish to intervene in any further adoption proceedings.

On 25 September 2002 I directed that the child’s solicitor was to write forthwith to the birth parents:

“(i)

informing them of the local authority’s decision not to support [M’s] placement in their care but to proceed with their plan for adoption and summarizing the reasons for that view;

(ii)

informing them of the next hearing date;

(iii)

providing them with the names, addresses and telephone numbers for several appropriate family law solicitors in England, should they wish to make any application in this matter;

(iv)

informing them about their possible eligibility for legal

aid;

(v)

requesting a response within 28 days of delivery of the letter.”

I further directed that the letter was to be sent to and delivered by Mrs Lee, the Site Manager in the Bureau of Milwaukee Child Welfare. Letters in the appropriate terms addressed to each of the birth parents were sent to Ms Lee on 8 October 2002. Despite Ms Lee’s best efforts (described in a letter from her dated 18 November 2002) there is no clear evidence that these letters have ever reached either of the birth parents. They seem to have left Milwaukee early in October 2002, leaving behind them outstanding debts but no forwarding address. It is perhaps telling that when they left they abandoned in the property M’s life-story book which K had given to them during her visit in August 2002.

On 7 November 2002 Ms Lee was able to hand the letter addressed to the birth father, B, to his mother, who told Ms Lee she would be seeing him soon. She was also able to give Ms Lee an address in Chicago of a relative who might know how to contact the birth mother, A. On 8 November 2002 Ms Lee sent a certified letter to A at that address, enclosing the letter dated 8 October 2002 and asking A to contact her as soon as possible. On 14 November 2002 Ms Lee received notice from the US Postal Service that her letter had been delivered on 12 November 2002 and signed for by someone (not the birth mother) with the same surname as the birth mother.

Neither Ms Lee nor the child’s solicitor nor for that matter the court has since had any communication from, either A or B. Neither they nor D were either present or represented at the final hearing before me on 16 December 2002.

By the time the matter came on for that hearing I had the following reports prepared for the purpose of the proceedings:

At the conclusion of the hearing I made an order that M be freed forthwith for adoption pursuant to section 18 of the Adoption Act 1976. I said that I would give my reasons in writing. This I now do.

It is convenient first to summarise my findings in relation to M’s status and the status of the various adults in her life:

I have considered very anxiously and very carefully the claims of the birth parents, A and B, and the question of whether M should be reunited with them.

The law of nature the domestic law of England and article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms – now incorporated in English domestic law by the Human Rights Act 1998 – all demand that, other things being equal, children should not be separated from, and if separated should be reunited with their natural parents. Other things being equal, children have the right to live with and be brought up by their natural parents. If at all possible they should be.

In the present case it might be thought, her birth parents have a particularly strong and pressing claim for M s return to them. They surrendered her for adoption by particular people – C and D – in circumstances where that adoption has disastrously broken down. Moreover, the circumstances in which A was induced to consent to and then go through with the adoption are such as to rouse even the judicial heart to indignation. It would seem that A was transported from Chicago to Houston if not actually in labour then on the very point of going into labour and, moreover at a time when her partner the birth father B was in prison. It is a fact that her formal consent to the adoption was obtained only three days after she had given birth and that a mere four days later the order was made permitting M’s removal from the United States of America. It would seem that A almost immediately repented of what she had done but that her protests were overcome by coercion and blackmail. Those are ugly words but if the birth mother’s account to the guardian of what happened to her at the airport on her return to Chicago is true – and I have no reason to think that it is not – then coercion and blackmail is, indeed, what she was subjected to. My heart goes out to this mother and to her partner. They have been exploited and abused by people who run businesses to make money out of trading in human beings and human misery.

Recognising all that, however, in the final analysis my decision has to have regard to M’s interests. Her welfare, her best interests, must at the end of the day determine the course I take, What then do M’s best interests require?

On the one hand M has powerful interests in being brought up by her birth parents and, let me make this absolutely clear, in being brought up as an American in the country of her birth and nationality. On the other hand, the fact is that she has spent all but the first ten days of her short life not in the United States of America but in this country. Moreover, and much more to the point, there is the considered opinion of K and L that M should not be returned to her birth parents and that she would be at risk of significant emotional and possible physical harm if she were.

I have already quoted their conclusion but the matter is so important that I think I ought to set out at length the key passage in the report dated 12-13 September 2002 prepared by K and L after their visit in August 2002 to Milwaukee:

“The local authority went to Milwaukee in order to identify if the parenting offered by [M’s] biological parents would be good enough. We felt if [M] were to be placed with her birth parents the transition would be a difficult one and in the short term [M] would inevitably suffer significant harm as indeed do many children when we move them from their short term foster home where they are well settled and happy. One thing we wanted to assess was how [A] and [B] would be able to help [M] to cope with the loss and grief she would inevitably feel at the same time she has to adjust to a very different environment.

We saw no evidence that [A] had any insight and [B], limited insight into the difficulties [M] might experience if she came to them. Any attempt to discuss this met with such comments as ‘she’d just have to fit in’, ‘all she needs is love and there’s plenty of that to go around’. Given that we had not witnessed any emotional warmth from [A] to [their older children] in the time we had spent with the family (between 10-12 hours), we had serious doubts about the emotional nurturing [M] would receive if she was placed with them and certainly because of lack of insight and empathy for [M’s] needs, we have no confidence that [A] and [B] would be able to help overcome the trauma of a move.

It is our view [A] and [B]’s own personality problems and distorted life experiences have significantly reduced their ability to nurture and adequately meet the needs of their children, Their own needs and unresolved difficulties take precedence over the needs of the children, which places their children at significant risk of emotional harm. It is our view from our observations that [M] should not be returned to her birth parents. We have come to this conclusion because we believe that [M] would be at risk of significant emotional and possible physical harm for the following reasons:

Those conclusions, I hasten to make clear, are in my judgment fully supported by the remainder of a report which if I may be permitted to say so, is a careful, impressive and compelling document reflecting the care, skill and determination with which its two authors went about their task The guardian agrees with the report’s conclusions So do I.

With sadness in my heart – because I fear they have been cruelly misused – I am driven to the conclusion that M s birth parents cannot adequately look after her and that it would be contrary to her best interests – now, in the short term and into the longer term – for M to be returned to them.

In coming to this conclusion I am also very conscious that the birth parents have, in the event, played no part in the proceedings before this court. But that, let me make it clear, is not for want of trying on the part of Authority Z, the guardian and indeed the court itself. Both the guardian in July 2002 and then the two social workers in August 2002 travelled to America at public expense to interview the birth parents and ascertain their wishes and feelings. Every effort has been made by the appropriate authorities not merely in this country but also in the United States of America to notify the birth parents of the outcome of their assessment by Authority Z. I am inclined to the view that in fact one or other of the letters forwarded by Ms Lee to the birth parents in November 2002 must have got through – did get through – to its intended recipient. But even if that is not so then I am afraid that the birth parents have only themselves to blame. Neither of them has communicated either with the relevant authorities in the United States of America or with Authority Z, the guardian or the court. Nobody has heard anything from them since K and L left Milwaukee on 28 August 2002. The birth parents have not made, either to Authority Z or to the court, any further request for assessment or for the return of M to ‘their care. Indeed, the birth parents, from beginning to end, have never once communicated with the court, whether formally or informally. They moved without leaving a forwarding address and appear to have made no effort to communicate their new address(es) either to the guardian or to Authority Z – and this notwithstanding that during their visit to Milwaukee in August 2002 the social workers reiterated on several occasions that should the birth parents move it was imperative that they inform Authority Z (whose address they had) of their new address.

In my judgment all reasonable steps have been taken to keep the birth parents fully aware of the proceedings and of all material developments. Every opportunity has been afforded to them to contest the proceedings and to challenge the conclusions of Authority Z’s assessment. They have not done so. I agree with K when she says that M cannot wait any longer, that she now needs permanency without delay and that no

I entirely agree with Authority Z’s analysis of the issues and agree with and endorse its plans as set out in the most recent reports from K and L So does the guardian.

I wish to express my sincere thanks for the great assistance that has been willingly provided in this case by many public authorities in the United States of America. That assistance has been of the very greatest help to Authority Z to the guardian and to this court.

I am very grateful, in particular, for the especial assistance we have had from the Embassy, from the Department of Human Services in Chicago and from the Bureau of Milwaukee Child Welfare.

This judgment discloses, and not for the first time, a most disquieting state of affairs – and, dare I say it, one that does nothing to maintain the reputation of this country in the eyes of courts and other public bodies abroad. I propose therefore to take the following steps.

In the first place I propose to direct that copies of this judgment be sent to:

Next it seems to me that it might assist the appropriate authorities in the United States of America if they were to be made aware of this court’s views about so-called home study reports and were to be made aware that such reports are unlawful inasmuch as they involve the commission of criminal offences by those persons within the jurisdiction of the English court who either commission or prepare them. I shall therefore direct that copies of this judgment are also to be sent to:

Finally, it seems to me that the wider public interest will be served by my giving this judgment in public so that it may achieve the widest possible dissemination.

I should make it clear that I did not finally decide to take these steps without having first given Jay Carter, her husband and Authority X an opportunity to make appropriate submissions. Copies of the draft judgment were sent to each of them inviting them to indicate whether:

In the event, all of them, having indicated that they did not wish to make any oral representations, delivered written submissions.

Authority X made helpful submissions which enabled me to understand rather better the role it had played. Those submissions are reflected in paragraphs [54]-[56] and [61]-[64] above and, I am satisfied, justify the somewhat modified comments which appear in what are now paragraphs [58], [60] and [66] above.

In relation to Authority X I should add two more observations. The first is that it has asked me to emphasise, which I am happy to do, that it shares my abhorrence of what I have called this “evil trade”. And, as I have already mentioned, it willingly cooperated with and assisted the police investigation into the involvement of Jay Carter, and her husband in private international adoptions.

The other is this. Authority X has pointed out that, were it to be named, that would probably lead to the identification and location of C’s other children, who might then be exposed to the attentions of the press and other media. That is, it seems to me, a very real risk. There is, in my judgment, no compelling public interest in Authority X being identified. There is, on the other hand, a compelling need to protect the privacy of C’s other children. I have therefore decided not to identify Authority X.

The position in relation to Jay Carter and her husband is rather different. Each of them filed a submission which contained these words:

“I do not wish to make any submissions with regard to the findings Your Lordship has made or to the views you have expressed.”

Accordingly, as I understand it, they accept the accuracy of the facts as I have set them out, including in particular the facts, so far as relate to them, which appear in paragraphs [9], [37] and [47] above. Moreover, it follows that Jay Carter does not even seek to challenge the assessment of her work and of her competence – or lack of it – which is set out in paragraphs [48]-[52] above. I see absolutely no reason to modify any of the views I expressed in my draft judgment, the relevant parts of which appear unchanged in the final version.

Both confined their submissions to the question of whether their names should be published and, in the case of Jay Carter, the further question of whether the judgment should be sent to the Director of Public Prosecutions and the Attorney-General. Both submitted that no useful purpose would be served by the publication or further publication of their names. Jay Carter submitted that there was no need for the matter to be reported to the authorities. Their reasons, which were essentially the same, were in summary that:

I have considered these submissions very carefully, but I have concluded that I cannot accept them. There is, in my judgment, a plain public interest in someone who has consistently conducted herself in the way in which Jay Carter has behaved being publicly identified so that anyone who may in future come across her in some “professional” capacity should have available to them the facts as set out in this judgment. If the consequence is that she finds herself subjected to media scrutiny then that may be her misfortune; but it cannot in my view be any reason for protecting her identity if there are, as in my judgment there are, compelling reasons why the facts should be known. Nor am I persuaded that there is no purpose in my sending the papers to the Director of Public Prosecutions and the Attorney-General. I am in no position to come to any conclusion as to what activities Jay Carter may currently be involved in and the relevant public authorities should, as it seems to me, have the opportunity of carrying out their own investigations into her activities.