London Borough of H v M & Anor

A is a baby boy born on 30 April 2005. He is in the care of the local authority under an interim care order and has been since he was only a few months old. His mother (M) is unable to care for him because of drug related difficulties. His father is thought to be E who is a young man living in Greece. Although he seems to have known of A’s birth from a few months after it took place, he has not had any involvement in his life and he does not have parental responsibility for A. Recently, he offered A a home with him. Representatives of the local authority travelled to Greece to assess him but their findings were not favourable and, having considered all the evidence on the issue, I ruled him out. The plan is therefore for A to go to live in Germany with his mother’s half brother and the half brother’s wife, Mr and Mrs G. This plan is put forward by the local authority and endorsed by A’s guardian. M also instructed her counsel to consent to it although making it clear that she did not consent to the placement being with a view to adoption.

Last week, I was asked to make such orders as are necessary to allow A to go to live in Germany. I dealt then with the factual matters that needed to be resolved in this respect, leaving only the issue of whether there was any legal method by which I could properly authorise the local authority to arrange for A to leave this country to live with Mr and Mrs G. Although on the face of it of very narrow ambit, this proved to be a question of exceptional complexity because the case falls to be dealt with in the light of the Adoption and Children Act 2002 as well as the Children Act 1989 and the Adoption Act 1976 and it brings into play, in particular, the transitional arrangements under the 2002 Act. I am somewhat reassured that the Court of Appeal in In re A (Adoption: Placement Outside Jurisdiction) [2004] EWCA Civ 515 remarked upon the difficulty of this area of law, even without the complication of the transitional provisions and with, no doubt, considerably more argument than it was possible for there to be in front of me at a hearing that was listed as a one hour directions hearing. This is certainly not intended as a criticism of counsel who did their utmost to assist me and did so ably.

I set out my factual findings in an extempore judgment last week. As well as dealing with the question of whether there should be further exploration of E’s proposal to care for A, I resolved a number of matters with an eye to the possibility that closer examination of the law may reveal that it would be legitimate to authorise A to go abroad under the provisions of paragraph 19 of Schedule 2 of the Children Act 1989. I dealt with the merits of the Germany plan which I approved as being in the best interests of A. I expressed myself satisfied that suitable arrangements have been made or will be made for his reception and welfare in Germany. I recorded that A’s consent to the plan was unnecessary as he does not have sufficient understanding to give it. I also indicated that if necessary, I dispensed with M’s consent to the plan on the basis that it was unreasonably withheld. This may be thought to have been otiose given that she had actually indicated through her counsel that she consented, but it was felt prudent in the light of her absence from the hearing and her tendency to change her mind and in the light of her stipulation that she did not consent to adoption.

I reserved judgment on the law and it was only whilst working on this that the full complexity of the issues became apparent. It will be appreciated that, in the light of the present state of judicial resources, no time is allocated during the normal working week for the writing of judgments such as this. That, together with the need to give my decision urgently, meant that although I have spent many hours on this matter, my endeavours might not have been sufficient. Accordingly, when the draft was sent out, I invited counsel to assist if I had made obvious errors in carrying out my own research and reaching my own conclusions. They made further helpful contributions.

Ultimately the local authority hope and intend that A will be adopted by Mr and Mrs G in Germany. The local authority’s Adoption and Permanency Panel accepted in principle in November 2005 that it was in A’s best interests to be adopted. That panel has not yet approved Mr and Mrs G as adopters for him. So far, the Gs have only been approved as kinship foster carers by the local authority’s Fostering Panel; this was done on 5 June 2006.

It has never been easy to determine the correct legal route to the placement of children overseas in contemplation of adoption. It may help to understand the transitional provisions under the 2002 Act if I first set out what I understand has been the position under the old law and will be the position under the new law.

S 56 Adoption Act 1976 provides that it is not lawful for any person to take or send a British child out of Great Britain to any place outside the United Kingdom, the Channel Islands and the Isle of Man with a view to the adoption of the child by any person. As originally drafted, the section did not cover taking or sending a child out of the country with a view to adoption by a parent, guardian or relative. This saving was removed by the 2002 Act (paragraph 11 of Sch 4) with effect from 1st June 2003 although there was to be power to make regulations taking certain family placements out of the ambit of s 56. I am not aware that any regulations have been made.

A removal out of the jurisdiction which would otherwise be caught by s 56 Adoption Act 1976 could be made lawful if an order was first obtained under s 55 Adoption Act. This provided for parental responsibility for the child to be granted in certain circumstances to a person intending to adopt the child under the law of a foreign country. S 55 also sometimes had a potential utility in smoothing the adoption application in the foreign country when it was finally made.

Local authorities had at their disposal an alternative route which circumvented ss 55 and 56. They could seek approval of the court under paragraph 19 of Schedule 2 Children Act 1989 for a child in their care to live outside England and Wales. Where such approval was granted, s 56 did not apply (see paragraph 19(6) as it was before amendment by the 2002 Act).

It was suggested to me during submissions that in some other cases, leave had been granted to local authorities under s 33(7)(b) Children Act 1989 as an alternative to paragraph 19. That does not seem to me to be an appropriate course. Paragraph 19 contains considerably more safeguards to ensure the child’s welfare in the new country than s 33(7), and s 33(8) expressly provides that s 33(7)(b) does not “apply to arrangements for [a child on a care order] to live outside England and Wales (which are governed by paragraph 19 of Schedule 2)”.

Once in the foreign country, the prospective adopters would apply under their own law for an adoption order. The controls prescribed by our domestic legislation in relation to the adoption ceased at the time the child left this country either pursuant to paragraph 19 approval or with a s 55 order.

S 85 Adoption and Children Act 2002, which came into force on 30 December 2005, provides:

“(1)

A child who –

(a) is a Commonwealth citizen, or

(b) is habitually resident in the United Kingdom,

must not be removed from the United Kingdom to a place outside the British Islands for the purpose of adoption unless the condition in subsection (2) is met.

(2)

The condition is that –

(a) the prospective adopters have parental responsibility for the child by virtue of an order under section 84, or

(b) [Scotland and Northern Ireland]

An order under s 84 is an order giving parental responsibility to persons who intend to adopt a child under the law of a country outside the British Islands. Application cannot be made by the prospective adopters for a s 84 order unless the child has had its home with the applicant(s) at all times during the preceding ten weeks. There is a view that this period of residence must take place in England and Wales but I am not required to consider, for the purposes of this application, whether that is correct. Regulations can be made under s 86 modifying s 85 in certain circumstances, including where the prospective adopters are relatives of the child. It is hoped that such regulations will soon be made although counsel have informed me that they have been told that nothing is planned. If it is correct that the 10 weeks residence has to be in this country, it will necessitate very considerable disruption of the family life of the prospective adopters who may not be able to fulfil the condition or may be deterred by it from providing a home for a child which would otherwise meet that child’s needs admirably. In addition to the residence condition, any other requirements prescribed by regulations must also be satisfied before a s 84 order can be made.

The paragraph 19 approval route is circumscribed under the new law. Paragraph 19 now includes a new sub-paragraph as follows:

“(9)

This paragraph does not apply to a local authority placing a child for adoption with prospective adopters.”

In paragraph 19(6), the reference to s 56 Adoption Act 1976 has been replaced by a reference to s 85 of the 2002 Act so that the provision now reads:

“(6)

Section 85 of the Adoption and Children Act 2002 (which imposes restrictions on taking children out of the United Kingdom) shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph.”

There must be limited circumstances in which s 85 is actually disapplied by this sub-paragraph. S 85 is a provision designed to operate only in what I may call the adoption sector, prohibiting removing a child from this country “for the purpose of adoption”. Yet by virtue of the provisions of paragraph 19(9), paragraph 19 cannot apply where the local authority is “placing a child for adoption with prospective adopters”. As the amended paragraph 19(6) must have been intended to do something, it must contemplate that there will be situations in which a child is being taken abroad for the purpose of adoption (so would fall within s 85) but is not yet being placed for adoption with prospective adopters (so would not fall within paragraph 19(6)). One such situation may be where the plan is adoption abroad but, for some reason, the child is to go to live with someone else before taking up residence with prospective adopters. I will examine in due course whether another situation may be where, as here, the child is to be placed immediately with the family who it is hoped will adopt him but the local authority has not yet taken all the formal steps necessary to approve the placement for adoption.

If one assumes for a moment (and I say again that I am not deciding this point) that the legislature intended and provided that children should live with their prospective adopters for 10 weeks in this country before they could go abroad for adoption and made this the general rule, paragraph 19 would obviously provide an attractive potential escape route in some cases for local authorities for whom, as the cases presently arriving in the Family Division demonstrate, this residence provision is likely to prove problematic. The route around s 85 would, in these circumstances, be as follows:

An application for a parental responsibility order under s 55 was issued by the local authority on behalf of Mr and Mrs G in December 2005 in an attempt to ensure that this case would be dealt with under the old law. Charles J confirmed, on 7 March 2006, that subject to the Gs ratifying the application, which they have done, it was validly made on 29 December 2005.

S 55 applications which have been made before the appointed day (30 December 2005) and not disposed of continue under the old law. Art. 12 Adoption and Children Act 2002 (Commencement No. 10 Transitional and Savings Provisions) Order 2005 provides:

“Pending applications under section 53 or 55 of the 1976 Act

12.

Nothing in the 2002 Act affects any application under section 53 (annulment, etc. of overseas adoptions) or 55 (adoption of children abroad) of the 1976 Act, where the application has been made and has not been disposed of immediately before the appointed day.”

Mr and Mrs G can therefore proceed in due course, if necessary, with their s 55 application. It would, however, be premature for them to proceed with it at this stage, not least because no order can be made under s 55 until the child has been living with the applicants for 6 months. It is therefore contemplated that a final hearing may be appropriate in the New Year 2007. Meanwhile, there is an urgent need for the local authority to arrange for A to go to live with the Gs in Germany. All the necessary practical preparations have been made for this. Both the English local authority and the German social services have assessed the Gs favourably. In addition to the English local authority panel approving them as foster carers, the German central authority has given its consent for the placement as is required by Article 56 of Brussels IIA. Investigations with a German lawyer appear to state that A’s adoption in Germany would not pose a legal problem. The challenge has been to find a way in which the placement which is so obviously in A’s best interests can go ahead legitimately in advance of a s 55 order in favour of the Gs.

As I do not consider that s 33 Children Act 1989 applies for the reasons I have given above, the only way in which A might properly be able to go to live in Germany at this stage is under paragraph 19 of Schedule 2 Children Act 1989. If authority cannot be given under that paragraph, it seems to me that either the Gs would have to take up temporary residence here for at least 6 months so that A can live with them here and the residence requirement for s 55 can be satisfied or the s 55 application might have to be abandoned and a s 84 application made instead (which would still require residence, quite probably here, but for a shorter period). Alternatively the placement will have to be for something other than adoption.

Working out how paragraph 19 applies in a case such as this which straddles the old and the new law has not been easy.

The first question is which form of paragraph 19 applies to the local authority’s application for approval for A to go abroad. Although it was obviously part of the plan as far back as December 2005 that such an application would be made in due course, no one argues that it was actually made until after 30 December 2005. Even had it been, there does not appear to be any provision saving paragraph 19 applications that were extant at 30 December 2005. Accordingly, the first assumption is that paragraph 19 applies to this application in its new form. That means that it contains the paragraph 19(9) prohibition on its use where the local authority is placing a child for adoption with prospective adopters. It also means that paragraph 19(6) refers to s 85 of the 2002 Act rather than s 56 of the 1976 Act.

This first assumption needs to be examined in more detail, however. I will deal with paragraph 19(6) first. S 56 Adoption Act 1976 is repealed by Schedule 5 of the 2002 Act from 30 December 2005 save for transitional provisions. It is always difficult to be sure that one has found all the relevant provisions but my researches have not uncovered anything that expressly perpetuates s 56, even where a s 55 application remains extant. Counsel for the local authority submitted that some continued existence for s 56 after 30 December 2005 must have been contemplated by the legislature because paragraph 11 of Schedule 4 of the 2002 Act amends it. Why bother if it was being simultaneously repealed, the argument goes? It seems to me, however that s 56 was not, in fact, ever intended to be amended and repealed in one fell swoop, nor was it. The paragraph 11 amendment of s 56 came into force in June 2003, a full 18 months before the bulk of the new adoption regime and before the repeal of the Adoption Act 1976. This makes it probable that the paragraph 11 amendment was intended as an urgent measure to restrict the circumstances in which a child could be sent abroad which would cover the period until the new adoption law came into effect.

If s 56 was repealed from the start of 2006 with no material saving provisions, s 85, the new equivalent, must be the effective provision prohibiting removal. S 85 is disapplied in a case where paragraph 19 leave can be granted and would not therefore prohibit the local authority from removing A to live in Germany in such circumstances.

That leaves one remaining question about paragraph 19, the answer to which provides the key to whether A can legally be sent abroad: does the proposed relocation to Germany amount to placing A with prospective adopters with a view to adoption which would make it a plan that could not be approved under paragraph 19 because of paragraph 19(9)?

I have already observed that the local authority panel has only approved adoption in principle. The Gs have not yet been approved to adopt A. M has indicated clearly that she does not agree to adoption. Plainly assessment of the placement will continue over the next few months to make sure that it is suitable and that adoption is indeed the route that is likely to be in A’s best interests. Meanwhile, the local authority propose to retain their role with regard to A pending the final hearing by virtue of a series of interim care orders. A will therefore remain habitually resident in England and Wales, Re H (Residence order: Placement out of jurisdiction) [2004] EWHC 3243 (Fam).

Placement for adoption is not something that necessarily denotes a completely fresh start. Sometimes a child is placed with a new family for adoption. Sometimes an existing placement, usually a foster placement, is converted to an adoption placement. S 18(1) Adoption and Children Act 2002 plainly contemplates a perpetuation of this. It is therefore possible in theory for A to commence living with the Gs on a fostering basis only and for the placement to be converted to a placement for adoption at a later stage.

Under the old law, the adoption agency’s panel had to make decisions about three things: whether adoption was in the best interests of the child in principle, whether the prospective adopter was suitable to be an adoptive parent in principle and whether the prospective adopter would be a suitable adoptive parent for this child. The adoption agency would then determine the way forward in the light of the panel’s recommendations. The Adoption Agencies Regulations 2005, made under the new Act, contain similar provisions as to local authority approval of adoption in principle and of the particular match that has been found for a child.

In my view, the local authority cannot “[place] a child for adoption with prospective adopters” until it has decided, following upon consideration by the appropriate adoption panel, that the proposed adoptive match with the particular family that has been chosen is the right one for the child. This local authority has not reached that point in its decision making. I therefore do not consider paragraph 19(9) to be an obstacle to the court giving paragraph 19 approval in this case to the local authority arranging for A to live in Germany. Having found that the conditions for such approval are satisfied, as I set out in my extempore judgment, I accordingly grant such approval.

Counsel for the guardian assisted me with an alternative view of the position with regard to paragraph 19 which, if right, obviates the need even to consider the new paragraph 19(9). The result, if I were to approach matters in this way, would be the same in that I would be able to give, and would give, paragraph 19 approval. Nevertheless, I propose to set out her suggested analysis so that it will be available should there be further debate on the point in this case or any other. It is as follows:

Paragraph 1 of Schedule 4 of the Adoption and Children Act 2002 which is headed General rules for continuity may assist in this argument although I confess that the drafting of that particular paragraph does not permit one easily to see whether what one dimly feels may be its role is in fact what it provides. It is in these terms:

“(1)

Any reference (express or implied) in Part 1 or any other enactment, instrument or document to –

(a)

any provision of Part 1, or

(b)

things done or falling to be done under or for the purposes of any provision of Part 1,

must, so far as the nature of the reference permits, be construed as including, in relation to the times, circumstances or purposes in relation to which the corresponding provision repealed by this Act had effect, a reference to that corresponding provision or (as the case may be) to things done or falling to be done under or for the purposes of that corresponding provision.

(2)

Any reference (express or implied) in any enactment, instrument or document to –

(a)

a provision repealed by this Act, or

(b)

things done or falling to be done under or for the purposes of such a provision,

must, so far as the nature of the reference permits, be construed as including, in relation to the times, circumstances or purposes in relation to which the corresponding provision of Part 1 has effect, a reference to that corresponding provision or (as the case may be) to things done or falling to be done under or for the purposes of that corresponding provision.”

My anxiety about counsel for the guardian’s analysis is that it is not one that is spelled out in the transitional provisions although it could have been, and it depends to an extent upon an assumption that the only utility for s 55 is to make it lawful to send a child abroad for adoption, circumventing s 56. The instant case is, however, an example of a case where the s 55 order is not going to be needed for that purpose but still has a utility because it will, in due course, be the means to give the Gs parental responsibility for A in the period prior to the German adoption.

I do not intend to enter at this stage into the issue of what legal steps now need to be taken. Counsel will consider the directions that are required in the light of my decision and draft the order setting out the paragraph 19 approval. If they can agree upon provisions which I can approve, no attendance will be necessary when this judgment is handed down.