London Borough of Haringey v MA & Ors

This case raises points that have been the subject of earlier decisions of the courts relating to the adoption of a child by a member of his or her family who live abroad. The earlier cases demonstrate that problems arise from the provisions of the Adoption and Children Act 2002 (the ACA 2002). They are problems of statutory construction and application.

A possible answer to the points of statutory construction and application that exist is that the inhibitions to a child being adopted by a family member who lives abroad exist unless and until regulations are made. This is why I joined the Department to these proceedings. I am grateful to its representatives for providing helpful submissions at short notice.

I have also had the benefit of detailed oral and written submissions from the local authority and an Advocate to the Court, instructed by CAFCASS, as well as from the parents, for which I am grateful.

The statutory puzzle arises from the interplay of a number of statutory provisions and regulations in particular:

The most relevant earlier decisions are H County Council v B [2005] EWHC 3437 (Fam), Re G (A Child) [2008] EWCA Civ 105, Re A (Adoption: Placement Outside the Jurisdiction) [2004] 2 FLR 337, A London Borough v M [2006] EWHC 1907 (Fam) and ECC v M [2008] EWHC 332 (Fam) and the cases referred to in it, and Plymouth CC v CR and others (Case number PL04CO1033).

The child was born in August 2006 and is therefore approaching her second birthday. When the care order was made in January 2007 the plan was for adoption. The family put forward several family members as potential adopters and the only ones considered viable are a paternal uncle and aunt who live in the USA (Mr and Mrs N) with their five children. If the child is not adopted by them she would have to be placed outside the family. It is thought that it would be relatively easy to find appropriate non-family adopters for her in this country. A tension therefore arises between the potential advantages of a family placement and the time table for the child.

The prospects of it being concluded that the child’s welfare would be best promoted throughout her childhood by her being adopted by Mr and Mrs N are thought to be good. However the local authority is of the opinion, in my view correctly, that at present it does not have sufficient information to reach a properly informed view on this.

Naturally the local authority do not wish to continue the process of investigating whether such an adoption should be supported if this cannot be done lawfully and/or practically having regard to the legal requirements and the child’s time table.

As will be apparent from what I have said some investigations have been carried out by the local authority and its counterpart in the USA. These form the basis for the view of the local authority, which I share, that on welfare grounds the possibility of the child being adopted by Mr and Mrs N in the USA should be further investigated and assessed.

The process, or steps, proposed by the local authority are as follows:

So, leaving aside the foreign element, what the local authority propose mirrors what it would do in this country if it decided that there should be a placement with family members before and perhaps leading up to a placement for adoption with those family members. If this was a domestic case it was not argued that any of the steps starting with a placement for assessment and then one for adoption were, or would be unlawful or inappropriate in any way.

At Step 1 the local authority has to obtain an order approving the removal of the child to the USA under Paragraph 19 of Schedule 2 to the Children Act. An issue arises as to whether that permission can lawfully be granted.

The local authority also seeks a declaration that there is no legal bar to the taking into account of the period the child so spends in the USA for the purpose of s. 84(4) of the Act. It does this to avoid the plan faltering because both Mr and Mrs N cannot remain in this country for 10 weeks and there are likely to be very real problems in Mrs N doing so because 4 of her children in the USA could not sensibly come with her to England for that period.

This plan makes it apparent that its underlying purpose is to enable Mr and Mrs N to obtain an adoption order in respect of the child in the USA. If this was not the case, and it was not thought that there was a good chance of establishing that this was the result that would be likely to best promote the welfare of the child, the plan would not be pursued.

The plan involves time and commitment by the local authority and co-operation between it and the relevant authorities in the USA.

The parents support the plan. But as yet they have not given permission to the child’s placement for adoption with Mr and Mrs N (or generally) and no placement order has been made. If, but only if and after, the assessment process is positive, the plan envisages parental support for a placement for adoption with Mr and Mrs N. In my view it follows that if a placement order was sought now, or after the child had been living with Mr and Mrs N, it could well be successfully resisted on the basis that the parents favour (and after proper investigation would agree to) an adoption by Mr and Mrs N. To my knowledge it has not yet been decided whether a placement order, in respect of a child whose welfare will be best promoted by adoption, and who is ready for adoption, can be resisted on the basis that the parents indicate that they will (or may when proper investigations have been completed) consent to a placement for adoption with named people. The issue relates to the ability of birth parents to give permission for a placement with named prospective adopters (see s. 19(1)(a) ACA 2002) and the power given to a local authority by a placement order to place with any prospective adopters of its choice (see s. 21(1) ACA 2002).

In any event the making of a placement order only authorises a placement for adoption which may or may not take place in reliance on that order.

The declaratory relief sought is limited to the second stage and effectively to the trigger or condition precedent to the making of an application under s. 84. It therefore does not seek to cover the next stage, namely the making of a parental responsibility order.

In my view in deciding whether or not to grant the relief sought the court should look forward to the next stage and consider whether there is an impediment in law to the making of a parental responsibility order. I am of this view because if there was such an impediment, or if the uncertainties of law or fact relating to the making of such an order were significant this would, or could, render the overall plan one that the court should not support by giving permission under paragraph 19 of Schedule 2 to the Children Act or by making the declaration sought.

So in my view I need to go on to consider whether, having regard in particular to the provisions of s. 42(7) (as applied to a parental responsibility order), such an order is likely to be one that will be made on the assumption that the period that the child lives with Mr and Mrs N in the USA, and its other investigations and work, lead the local authority on welfare grounds to support the making of a parental responsibility order. In this context a point also arises under Article 17 of the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption (the Convention).

In my view the following questions need to be considered:

The local authority argue that the answer to all four questions is “yes”. It has the general support of the parents. The Department answers the first two and the fourth questions “no”, and understandably did not address the third question in any detail. CAFCASS as a friend of the court raise points for my consideration and indicated that a “yes” answer to the second question would appear to run contrary to Parliamentary intention and authority.

It is in my view correctly common ground that the relevant legislation should be given a sensible and purposive construction.

Again in my view correctly it was common ground that there is no relevant Parliamentary material that is admissible to assist in the construction of the relevant statutory provisions. The ACA 2002 received Royal Assent in November 2002.

Notwithstanding that common ground the Department drew my attention to Parliamentary exchanges in 2005 and 2006 concerning the Children and Adoption Bill 2006 to demonstrate that some of the problems raised in this case were discussed in that context and did not result in amendments to the ACA 2002. These discussions straddle the decision of McFarlane J in Re H. They clearly show that (a) the understanding of those proposing amendments and of those responding, was that before an order under s. 84 ACA 2002 could be made the child has to live with the prospective adopters in this country for 10 weeks, and (b) the view was taken that this should not be changed by amendments to the ACA 2002.

This is not the place, and I am not sufficiently informed, to set out a summary based on all the policy arguments for and against such a requirement. These appear in general terms from the Parliamentary exchanges I was referred to and the written submissions of the local authority and the Department.

Common ground is that there is:

The arguments in this case relate to adoptions abroad following placements for adoption by a local authority. There may well be wider and different issues in respect of other potential adoptions abroad.

In particular in case where a child is in the care of a local authority the policy divide relates to the question whether a requirement that the child has to have a home in this country with the prospective adopters for 10 weeks, so that the relationship between them can be monitored by the local authority, promotes or hinders the aims mentioned above and a result that best promotes the welfare of a child who has family abroad who it is thought might well be able to provide him or her with a good adoptive home.

On one side it is said that the same or equivalent safeguards should be given to children placed with prospective adopters who intend to adopt them outside the UK as are given to children placed for domestic adoptions and this requires a period of at least 10 weeks being spent by the child and the prospective adopters in a home here. On the other side it is said that in many cases this would render it impossible for a child to be adopted abroad by a member of his or her family, and in others would deprive the local authority and the court of important information to enable them to determine the prospects and risks of, and relating to, the proposed adoption.

As to the last point the position of the Department is that:

No doubt in some cases a local authority and a court would feel sufficiently informed to assess the prospects of an adoption being successful without observation of the child in the home in which he or she would be living as an adopted child and thus only from observation of the child and the applicants in a temporary setting and with information from abroad. But in others they may not feel able to do this. In any event an inability to observe the child in the home in which he or she would be living would result in an assessment with artificial elements and gaps.

It is thus certainly arguable that, at the stage that a parental responsibility order is made under s. 84 ACA 2002, the position adopted by the Department inhibits a properly informed assessment of the risk of breakdown after the considerable emotional investment made by the child and the adults in embarking upon, and successfully completing, a period of assessment in a temporary home and environment in this country. To my mind this is so in the case of a Convention Adoption Order as well as a foreign adoption in a non-Convention country notwithstanding the detailed provisions (along the lines no doubt of those in Regulations 12 to 34 of AFER 2005) in a Convention country relating to the making of the adoption order and the return of the child if it is not made.

As to the risk of a child being abducted, or left adrift in a foreign country if a placement for assessment (or after a parental responsibility order was made) was to break down in my view there is force in the points that (a) the court is familiar with the assessment of similar risks when giving permission for children to be taken abroad in other contexts, and (b) under the proposals of the local authority the risks consequent on a breakdown (both before and after the making of a parental responsibility order) are greatly ameliorated by the active participation of the relevant public body in the USA. In my judgment those risks would not found a refusal to give approval under paragraph 19 of Schedule 2 to the Children Act.

It will be apparent from what I have said that in my view the detailed plan advanced by the local authority in this case, which involves assessment here and in the USA and co-operation with the relevant public bodies in the USA, strikes a sensible balance which promotes the welfare of the child whilst having proper regard to the issues that underlie the provisions in the ACA 2002 (and incorporated regulations) concerning foreign adoptions. Indeed if this plan is prohibited in line with the views expressed by Black J in EEC v M it seems to me that on the particular facts of this case that would be a triumph for state control (and in particular a rigid adherence to an approach that encompassed both local authority and other placements) over the promotion of the welfare of the individual child in this case.

It is apparent that the local authority shares this view and this is why it has taken such time and trouble to advance its arguments in this case which are founded on the fact that the child is in its care (with a care plan for adoption) and it is of the view that there are good prospects that the welfare of the child will best be promoted by her adoption abroad by Mr and Mrs N.

However there is a body of opinion that has not shared, and does not share, this view as to how the balance of competing interests in respect of a child leaving this country for the purpose of adoption should be struck.

Further I acknowledge later that there would be advantage in there being further regulations relating to adoptions abroad and there are a number of details and difficulties that they would have to address, and which the court would be likely to have to address in other cases absent relevant further regulations. For example, how much of the detailed plan of the local authority in this case and allocation of resources would other local authorities have to replicate and how many of the circumstances that exist here would have to exist in other cases?

On welfare grounds I would give permission. The relevant issue is one of legality.

But for the possibility that it is avoided by the provisions of Paragraph 19 of Schedule 2 to the Children Act, in my view the breadth of the offence as defined by ss. 85(1) and (3) ACA 2002 means that an offence would be committed at Step 1 of the local authority’s plan. This is because in my view the removal would be “for the purpose of adoption” if that phrase is looked at in isolation because this is the underlying and ultimate aim of the plan. This was the position taken by the Department.

In my view in the context of the ACA 2002 as a whole the primary definition or description of the offence in s. 85(1) ACA 2002 is set in wide terms to cover all types of removals and thus to cover those with the approval or a local authority and the court and those instigated by the adults in, or outside, the child’s family who are caring for the child. In my view this view is reinforced by the power to make regulations under s. 86. So in my view the facts that (a) the underlying purpose of the plan is to assess and if appropriate promote an adoption abroad, and thus (b) it would not be embarked upon if it was not thought that there was a good prospect that it could be established that the making of a parental responsibility order and a foreign adoption order would best promote the welfare of the child, means that at Step 1 it is within s. 85(1) ACA 2002.

If that is wrong, and the initial stages of the plan are not so caught in my view they would be caught by s. 85(3). This is because the initial steps are part of an arrangement to facilitate a removal for the purpose of adoption and sub-section (3) makes clear that removing a child from the UK has that breadth of meaning. But in my view this alternative argument is not necessary.

The local authority argued that “for the purpose of adoption” means for the immediate purpose of adoption and thus that the offence under s. 85 ACA 2002 is a narrower concept than one based on the concept “with a view to adoption” (the phrase used in s. 52 Adoption Act 1958 and s. 56 Adoption Act 1976). As appears earlier, I do not agree and in any event if I am wrong any additional width in the phrase “with a view to adoption” is incorporated by s. 85(3) ACA 2002. I add that in my view it would be surprising if Parliament had intended to narrow the offence.

The Department argues that at Step 1 approval cannot lawfully be given under Paragraph 19 of Schedule 2 to the Children Act because on its true construction and application the local authority would be “placing the child for adoption with prospective adopters” within paragraph 19(9).

Inevitably to advance that argument the Department has to assert, and do assert, that the conclusion of Black J in A London Borough v M [2006] EWHC 1907 (Fam) and ECC v M [2008] EWHC 332 (Fam) as to what is meant by “placing a child for adoption with prospective adopters” is wrong. However, the Department does not assert that Coleridge J was wrong in Plymouth CC v CR and others (Case number PL04CO1033) because in that case approval was given on the basis that adoption was simply one option in a whole range of possible options, and so the assessment to take place abroad was of a range of various options of which adoption was just one. That it is argued is materially different to an assessment of whether adoption by Mr and Mrs N abroad is a result that would best promote the local authority. Of course there is a difference but:

Save that I accept that Paragraph 19 of Schedule 2 to the Children Act (and in particular in this context sub-paragraphs (6) and (9)) have to be read with and as part of the regime set by the ACA 2002 and given a purposive construction, I do not accept the arguments of the Department.

Rather, I agree with the reasoning and conclusion of Black J in paragraphs 75 to 83 of her judgment in ECC v M.

It follows that in my judgment permission can lawfully be given for a local authority to arrange for a child to live outside the UK for the purposes of an investigation and assessment of whether adoption abroad by the persons with whom the child is to live would be the most appropriate welfare solution for that child throughout his or her childhood.

In paragraph 75 of her judgment Black J says:

“The important provisions of paragraph 19 for the present purposes are subparagraphs (6) and (9). Paragraph 19 (6) is concerned with children who would potentially be protected by s 85 of the 2002 Act. These are children who are being removed from the country “for the purpose of adoption”. Paragraph 19(9) concerns children whom the local authority is “placing ---- for adoption”. If the local authority is placing a child for adoption, paragraph 19(9) provides that paragraph 19 does not apply. The existence of paragraph 19(6), which disapplies s 85 of the 2002 Act where a child is to live outside England and Wales with paragraph 19 approval of the court tells us that after you have excluded all those children whom the local authority it is “placing ---- for adoption” and to whom, by virtue of paragraph 19(9), paragraph 19 does not apply, there remains a category of children to whom paragraph 19 does apply who might come within the terms of s 85 i.e. children who are being removed from the country “for the purpose of adoption”. If it were not so, there would be no need of paragraph 19(6). It follows that being removed from the country “for the purpose of adoption” and being placed for adoption are not precisely the same thing. Given that there can be little doubt that placing abroad for adoption is a species of removal for the purpose of adoption, placement for adoption must therefore necessarily be a narrower concept than removal for the purpose of adoption.”

It was argued that this reasoning was flawed because it relies on a step in the normal regime not being taken, namely “placing the child for adoption with prospective adopters” to enable permission to be granted and to avoid the criminal offence being committed. I do not agree.

Whilst I agree that often under the domestic regime a child does not live with prospective adopters until he or she has been placed for adoption with them as prospective adopters, this is not always the case both before and after the care plan becomes one for adoption (with or without a back up). So, for example, a foster placement can change to one for adoption. Indeed this is expressly contemplated by s. 18 (1)(b) ACA 2002 and in my view when a child is so left he or she is placed for adoption as that concept is used elsewhere in the ACA 2002 (e.g. in s. 42(7)) and the status of the carers changes to one of prospective adopters.

As was pointed out by the local authority, given the desirability to place if it can within a family this change of status can happen when such a family foster placement changes to one for adoption. Here the initial placement is after the care order has been made, but in my view this could well have been the timing if Mr and Mrs N lived in England, even though if that had been the case the placement could well have been before the care order was made.

So in my view it is incorrect to say that what is proposed leaves out a step, or is out of line with the regime set by the ACA 2002 because in that context there is a valid and real distinction between a person being (a) a “prospective adopter”, and (b) a foster carer who might become a prospective adopter if a child is left with him or her on that basis.

Further in my view it does not follow that because the only medium to long term placement with Mr and Mrs N that is contemplated, and is being assessed, is as adopters the initial placement with them is one for adoption with prospective adopters rather than as foster carers.

It is clear that in this context “placed for adoption” does not mean placed for adoption pursuant to an order for adoption under the ACA 2002 (as it would in the domestic context) but in my view this does not warrant the phrase or concept having a different meaning for the purposes of Paragraph 19(9) of schedule 2 to the Children Act to its description in s. 18 and elsewhere in the ACA 2002 (e.g. ss. 24(5), 42(7), 43 and 44). This seems to me to flow from the point that Paragraph 19 of Schedule 2 to the Children Act must be read with, and as a part of, the regime set by the ACA 2002. Elsewhere the concept of placement for adoption with prospective adopters involves the creation in defined circumstances of a particular status and relationship between a child and adults within the regime of the ACA 2002 which, as Black J points out, can only be put in place by a local authority in defined circumstances. In my view there is no good reason why these ingredients should not also be required in the context of Paragraph 19(9).

To my mind there is a need for a consistency of approach in applying the concept of “placing for adoption” that recognises those defined circumstances and the creation of that status and relationship. Any other approach would introduce difficult issues as to where the relevant line was to be drawn.

The Department argues that paragraph 92 of the judgment of Neuberger LJ (as he then was) in Re A (Adoption: Placement Outside the Jurisdiction) [2004] 2 FLR 337 supports its contention that “placing a child for adoption” should be construed in paragraph 19(9) as, or as referring to the same concept as removing a child from the jurisdiction for the purpose of adoption. I do not agree. This case was dealing with paragraph 19 of Schedule 2 to the Children Act and the Adoption Act 1976 and thus with the situation before the addition of sub-paragraph 19(9), and when the offence was defined by the phrase “with a view to the adoption of the child”. Part of the background was that as a freeing order had been made the children were not in the care of the local authority but were looked after children (see paragraph 25 of the judgments) and therefore sub-paragraph paragraph 19(1) did not apply and so neither did sub-paragraph 19(6) (which then referred to the offence under s. 56 of the Adoption Act 1976 rather than s. 85 ACA 2002 but otherwise was in the same terms) on its language. This is because paragraph 19(6) refers to a child living outside England and Wales with the approval of the court, and that approval can only be given if the child is in the care of the local authority.

The passage relied on by the Department is directed to the argument whether the children had been “placed for adoption” within s. 20(1)(b) of the Adoption Act 1976 (a trigger provision to an application to setting aside a freeing order). It was therefore dealing with a different type of issue and the conclusion was that the children had been so placed notwithstanding that the placement had been unlawful. To my mind the passage relied on that the phrases “has been placed for adoption” and to a child having been taken out of the jurisdiction “with a view to [his] adoption” being concerned with the same concept is not a necessary part of the reasoning. Although I would not in that context dispute that conclusion, the same result (namely that for s. 20 (1)(b) (and other sections) an unlawful placement for adoption was a placement for adoption) could have been founded on (a) the assertion that the wider phrase included the narrower one and rendered the placement in that case unlawful, or (b) as it was at the beginning of paragraph 92, and in paragraph 93, of the judgment without any reference to the consistency or overlap of the concepts derived from the two phrases.

Further it is to be noted that at paragraph 74 of his judgment when dealing with the illegality point Neuberger LJ expressed the view that:

“The combined effect of paras 19(1) and (6) is that where a child is in the care of a local authority, then the child may be sent abroad, for instance for the purpose of living with prospective adoptive parents, without the serious impediment of those prospective adopters having to come to the UK for 26 weeks.”

This is not part of his essential reasoning but is an indication that Neuberger LJ was of the view that a child could be sent abroad for the purpose of assessing the merits of a possible adoption and thus in that sense with a view to an adoption. This is what the local authority proposes in this case.

Also, it seems to me that if, as the Department alleges, in paragraph 19(9) “placing a child for adoption” must be construed as referring to the same concept as removing the child from the jurisdiction “for the purpose of adoption” and thus to the definition of new offence in s. 85(1) ACA 2002, this has the result that what is being given by sub-paragraph (6) is being taken away by sub-paragraph (9). In other words they cancel each other out.

It was accepted that this was unlikely to be the intention of Parliament. It was however argued by reference to s. 85(3) ACA 2002 that some steps or arrangements do not fall within the concept of “placing the child for adoption” but are within the concept of removing the child from the UK “for the purpose of adoption” and therefore would be an offence unless taken with the approval of the court and on that basis that sub-paragraph 19(6) has some effect. On the Department’s argument this distinction does not include any of the steps proposed by the local authority in this case. It goes back to its acceptance of the conclusion reached by Coleridge J in Plymouth CC v CR and others and is based on the definition or explanation of what is included in the concept of “removing a child from the UK” in s. 85(3) ACA 2002.

In my view even if this distinction is valid (and as appears above I do not accept that it is) this argument is too sophisticated. In agreement with Black J it seems to me that in adding sub-paragraph 19(9) by the ACA 2002 Parliament was intending there to be a difference between the concepts of a removal from the UK “for the purpose of adoption” and thus the primary definition of the offence and “placing a child for adoption with prospective adopters” and that it therefore used the latter expression and concept in the way in which it is generally used in the ACA 2002. That as Black J held, and I agree, is something (a) that can only be done with parental consent or in reliance on a placement order, and (b) which creates a new status and a new relationship between the child and the adults with whom he or she is living.

So in my view I can lawfully give approval to Step I proposed by the local authority.

Section 84 is specifically directed to the making of a parental responsibility order in favour of persons living abroad and therefore clearly did not need to have an amending or deeming provision added by Regulation 11 of AFER 2005. The regulations relating to s. 42(7) ACA 2002 are only incorporated into it indirectly, and at the stage of the making of the order, rather than that of the application for it.

Taking a purposive approach, without reference to authority, I confess that I would not have concluded that the home referred to in s. 84(4) had to be in England and Wales. My main reasons for this, which include arguments advanced by the local authority, are:

Further consideration without reference to authority, in my view, leads to the conclusion that this initial impression would generally not apply when the relevant child had not been in the care of the local authority when placed for assessment abroad to live with the potential applicants for an order under s. 84 ACA 2002 because then, as a result of s. 85, the child could not lawfully be removed from the United Kingdom to live with such persons for the purpose of adoption (which would be the underlying purpose of the placement and any assessment by foreign and domestic public authorities). This would leave in such a situation the possibility of information being gathered by such authorities or others during say a holiday, but it seems unlikely that this would occur.

This reasoning links to my reasoning and conclusions relating to Paragraph 19 of Schedule 2 to the Children Act and my preference (and that of the local authority) on the application of a purposive and sensible approach by reference to underlying policy considerations, and the mischief sought to be covered by the inter-relating provisions of the ACA 2002 and Paragraph 19 of Schedule 2 to the Children Act.

However, as I have mentioned there is both Parliamentary material and authority that support the opposite conclusion on a purposive and sensible approach. Namely that the home must be in the UK. Albeit that the Parliamentary material is not admissible as an aid to construction of the ACA 2002, as was effective common ground before me, it is informative as to, and sets out in part the competing policy or mischief arguments that are relevant to, a purposive approach. It is also the case that the Family Procedure Rules Committee has invited the Department to consider making regulations under s. 86(2) ACA 2002 which is indicative of an approach or acceptance that the home referred to in s. 84(4) is to be, or may have to be, in this country.

The Department points out that:

The Department also point to cases which support its argument that the 10 weeks referred to in s. 84(4) must be spent in this country.

In H County Council v B [2005] EWHC 3437 (Fam), McFarlane J expressly considered the question whether the 10 weeks referred to in s. 84(4) have to be spent in England and Wales. He held as follows:

“I have looked at the relevant DfES guidance, which is short on the point, but certainly encourages the view that it has to be in England and Wales. I have looked at the Adoption With a Foreign Element Regulations 2005 and, in particular, Regulation 10, which sets out the prescribed requirements for the purposes of s. 84(3), which must be in place before a court can make a s. 84 order. They are very detailed and in effect they require the adoption agency to conduct a thorough investigation of the case themselves and produce reports which are in all particulars effectively the same reports that would be provided in an adoption case. Regulation 10 also makes express reference to the Adoption Agencies Regulations 2005 and, and the requirements in Regulations 17 and 18 in particular. Those in turn are very detailed, and again really require the agency, in this case the local authority, as it were a domestic adoption application and undertake the detailed duties that they will have under those regulations in full in a case such as this.

The following regulation (reg. 11) of the Adoptions With a Foreign Element Regulations is also very comprehensive. It lists from (a) to (r) the sections of the primary legislation that apply to s. 84 cases and I note in particular that s. 44 is expressly included in a s. 84 application, s. 44 requires that notice of intention to adopt has to be given to the prescribed local authority. The import of all this detail is that this is a process that is to be conducted with the child in England and Wales.

Miss Corbett has helpfully referred to s. 86 of the 2002 Act which does indeed give Parliament power to modify s. 85 by Regulations if the prospective adopters are parents. Miss Corbett says that direct communication with the Department for Education and Skills has confirmed that no such regulations have been brought into force… It seems to me regrettable that this is the case… But the legislation has not been amended and we are where we are” (emphasis added).”

In Re G (A Child) [2008] EWCA Civ 105, the Court of Appeal stated that:

In ECC v M, Black J refers to the judgment of McFarlane J and at paragraph 92 of her judgment says:

“McFarlane J commented in 2005 in H County Council v B on the onerous and disproportionate burden imposed on foreign relatives who sought an order under s. 84 of the 2002 Act by the requirements as to residence in this country. There is power to modify the provisions of s. 85 by regulation but nothing has been done and I am told by counsel for the GAL that the Department for Children, Schools and Families indicates that no fresh regulations are planned in the immediate future despite the receipt of representations from various quarters about the practical difficulties which are being caused by the present legislation. I would urge the Department to look at this again” (emphasis added).

Save that she does not dispute the earlier conclusions of McFarlane J in my view these comments of Black J do not add to them. To my mind there are arguably indications both ways as to whether she agreed with his conclusion (see for example paragraphs 53 and 59). She did not reach a conclusion on the point because of the position taken in argument before her and because she was in a position to abandon the s. 84 ACA 2002 route.

It is not suggested that I am bound by the conclusion reached by McFarlane J and in my view it is correctly pointed out that it was reached before the ACA 2002 came into force, and he did not have the benefit of the detailed argument put to me. However and although he did not need to determine the point his judgment is premised on his conclusion that the 10 weeks would need to be spent in this jurisdiction and in my view constitutes a decision on this point. It has, no doubt with other things, also founded commentary in the Family Court Practice and elsewhere to this effect.

Re G is not binding authority on the point but the underlying assumption of the Court of Appeal that the home referred to in s. 84(4) ACA 2002 has to be in this country is persuasive and confirmatory of the above-mentioned commentary.

For the reasons stated above relating to my impression absent authority and for the reasons stated in the detailed arguments advanced by the local authority (referred to later and which I accept) I do not agree with the conclusion reached by McFarlane J in Re H (and thus the underlying assumption of the Court of Appeal in Re G). But in the light of those decisions and the commentaries based thereon (and on other matters including no doubt Parliamentary exchanges) I have concluded that it would not be right for me in the exercise of my discretion to either (a) approve the child being placed with Mr and Mrs N in the USA under Paragraph 19 of Schedule 2 to the Children Act, or (ii) to make the declaration sought by the local authority.

My main reasons for that are:

In addition it seems to me that a decision that what the local authority proposes is lawful would be likely to introduce a number of questions and issues in other cases which absent regulations would lead to (a) a domestic system governed in large measure by regulation, and (b) a system relating to some foreign adoptions governed by an incremental approach based on decisions of the court. In my view adoption is for good reasons an area that is governed by detailed regulations and there would be advantage in avoiding a piecemeal development through case law of the steps to be taken in respect of foreign adoptions (see further below under the heading “Regulations”).

What follows does not do justice to the detail of those arguments. In summary its arguments, which I accept, in addition to those incorporated in paragraph 65 to 67 above are:

In ECC v M Black J makes a number of comments on the s. 84 route and helpfully discusses, amongst other things, problems relating to what is a home or a home environment and earlier cases relating to this and thus predecessors to s. 42(7).

Regulation 11 of AFER 2005 provides that references in s. 42(7) ACA 2002 to an adoption order are to be substituted by an “order under s. 84”. So on such an application the following points arise in respect of which there is an overlap with the arguments mentioned above in respect of s. 84 ACA 2002 and Paragraph 19 of Schedule 2 to the Children Act:

I accept that in many cases in a domestic situation the child will have had his or her home with the applicants for an adoption order only after he or she has been placed with them as prospective adopters. But I do not accept that the tenses used in ss. 42(2) and (7)(a) mean that the observation referred to in s. 42(7)(a) ACA 2002 must be confined to the period after the placement for adoption by the local authority referred to therein. Rather, in my view the tenses simply reflect that (a) the period before an application can be made must follow that placement, and (b) the observation referred to in s. 42(7)(a) must be in a case in which such a placement has taken place. As to (b), in my view the language does not lead to a conclusion that the observation by the identified local authority has to be confined to the period after the placement for adoption.

I pause to comment that there may be some debate as to whether for the purposes of s. 42(4) ACA 2002 a child who is left for adoption with foster parents by a local authority is then placed for adoption by the local authority (see s. 18(1)(b) ACA 2002). In my view the child would be so placed, but if that was not correct the court would be likely to give leave under s. 42(6) ACA 2002 and to my mind (especially given the purposive and sensible approach to the application of the ACA 2002) it would make no sense if the period before such placement could not be taken into account as part of the period of observation referred to by the placing local authority.

This view is fortified by the lack of any time limit set by s. 42(7) ACA 2002 save inferentially by the time set by the court for the report under s. 43 ACA 2002. I agree with the local authority that this supports the view that the period for the observation is flexible and that the court, in determining whether it is satisfied that the local authority has had sufficient opportunities for its observations of the child and the applicants in the home environment (and thus the period required for the s. 43 report), will have regard to the time sought by the local authority, and to the opportunities the local authority has had for seeing the child in the relevant home environment before and after he or she was placed for adoption.

The domestic authorities referred to by Black J, but not McFarlane J, Re Y and Re SL support the conclusion that for the purposes of s. 42(7)(a) the home environment does not have to be in the area of the placing local authority. This supports the view that it does not have to be in this country when the proposed adoption is a foreign adoption. Also, as with s. 84(4) ACA 2002, the section, as modified to cover a s. 84 order, does not expressly provide that the home environment must be in this country.

I agree with the local authority that for these reasons, and for the reasons given in respect of s. 84(4) ACA 2002, the home environment for the purposes of s. 42(7)(a) ACA 2002 is not confined to one in this country.

The concept of the relevant local authority “seeing the child with the applicant in the home environment” introduces issues relating to what a local authority can delegate in the performance of that responsibility or duty of “seeing” and thus in respect of the observation by the local authority required by the sub-section and associated reporting obligations. In this case the local authority proposes to carry out work itself both here and in the USA which will involve its employees observing the child with the applicants and their family. In those circumstances, in my view correctly it was not argued that on its plan there was an unlawful or inappropriate delegation by the local authority of the responsibilities imposed by s. 42(7)(a) ACA 2002 (and associated reporting obligations).

In this context counsel did not refer me to any regulations that were relevant in a domestic or a foreign situation in respect of what may be delegated by one local authority to another, or delegated to others. It seems to me that this is an issue that could arise in other cases.

Regulations 10(a)(ee), 11(1)(j) AFER 2005 (and see Regulation 55 which applies the modifications set out in Regulation 11 to a Convention adoption order made abroad) expressly introduce a s. 43 report into an application for a parental responsibility order under s. 84 ACA 2002 and the same is done by regulations 48 and 49 AFER 2005 in respect of a proposed Convention adoption. Regulations 10 and 48 AFER 2005 also introduce other provisions of the AAR 2005. To my mind by both routes the duties referred to in Parts 4 and 5 of AAR 2005, and the provisions of Schedules 1 and 4 thereof are indirectly imported because these underpin what has to be included in relevant reports and what has to be done in taking relevant steps. I agree that the Family Procedure (Adoption) Rules 2005 (FP(A)R 2005) and Practice Directions supporting them are imported and relevant (I was in particular referred to Part D of the PD supporting Rule 29(3) which like other parts of the PD has an overlap with duties imposed by the AAR 2005 and the provisions of the Schedules 1 and 4 thereof). Part 3 AAR 2005 and Regulation 36 (reviews) in Part 6 AAR 2005 are expressly imported.

I also note that Regulation 52 AFER 2005 has a general provision applying ACA 2002, subject to the modifications provided for in Chapter 3 of Part 3 thereof, to adoptions within the scope of the Convention so far as the nature of the provision permits and unless the contrary intention is shown. This general qualification is not expressed elsewhere in the AFER 2005 but in my view it, and in particular the reference to the nature of the provision, reflects the purposive and sensible approach that the cases have shown has to be taken to the ACA 2002 and thus also in my view to the relevant Regulations.

Examination of the wide range of imported and relevant regulations, rules and practice directions introduces a morass of detail (for example as to the application of Regulation 36 AAR 2005 relating to reviews, Regulation 23 AAR 2005 relating to police checks and Part D of the PD to FP(A)R 2005 Rule 29 and paragraphs 20 to 22 of Schedule 4 to the AAR 2005 concerning information about the prospective adopters and the placement) from which arguments can be made relating to where the home or home environment is to be and the ability of a local authority to delegate. To my mind the general answer to these arguments is that they are not determinative of these issues and whether they point in one direction or the other it is likely that on a purposive and sensible approach they can be complied with.

I accept in some cases it may be that a proposed plan would be flawed because it did not enable a local authority, or others, to comply with relevant regulations etc. even though they are directory. But none of the arguments advanced before me in respect of such detail has caused me to conclude that if the local authority’s plan is implemented and results in it placing the child for adoption with Mr and Mrs N and supporting the making of a parental responsibility order in their favour, the court would not make, or would be likely not to make, that order because relevant regulations etc. have not been or will not be complied with.

An issue was raised in the course of oral argument on the meaning and effect of Article 17 of the Convention. This would have a “Convention meaning” and the point was not fully argued before me. Rather the rival positions were asserted.

The Department asserted that a child would be “entrusted to prospective adopters” at Step 1 of the local authority’s plan and therefore this step was precluded because the provisions of Article 17 would not have been satisfied. It was contended that a child was so entrusted if his or her day to day care was handed over. This is a wider approach than the Department’s argument that at Step 1 the child was being “placed for adoption with prospective adopters” and therefore potentially encroaches on its argument that there are circumstances in which a court can approve a child being placed abroad when adoption is but one of several options.

To my mind “entrusted to prospective adopters”:

In my view this conclusion is supported by the desirability (if not the need) for the relevant Central Authorities to have information relating to an actual placement in which the potential adopters had been caring for the child before they reach the agreement referred to in Article 17(c) that the adoption can proceed.

Regulation 47 AFER 2005, which the local authority addresses at Step 3 of its plan, requires effective compliance with Article 17 of the Convention before the child is placed for adoption. This regulation, and the approach of the local authority to complying with it:

For the reasons already given in my view the relevant change in status and relationship to bring about the situation when the child could be said to have been “entrusted to Mr and Mrs N” for the purposes of Article 17 of the Convention do not occur at Step I or before the local authority place the child for adoption with them at Step 3 of its plan At that stage on the local authority’s plan (a) Regulation 47 AFER 2005 will have been complied with, and (b) the conditions precedent to the child being placed for adoption under English law will have been met and the local authority will have made the decision to place (leave) the child for adoption with Mr and Mrs N as her prospective adopters rather than as her foster carers.

In my view there is a need to consider more than just the making of regulations under s. 86(2) ACA 2002. This is because these are focused on the criminal offence and not to the trigger and other provisions of s. 84 and s. 42(7) ACA 2002.

It also seems to me that if regulations are to be made consideration needs to be given to amongst other matters the comparative positions relating to (a) adoptions outside England and Wales but within the UK (see for example s. 42(8) ACA 20020, and (b) adoptions in countries that are signatories to various Conventions (e.g. Brussels II and the Hague relating to abduction) as well as to any distinctions that should be made between adoptions following placements by a local authority of a child in its care or who is a looked after child (n.b. the distinction in Paragraph 19 of Schedule 2 to the Children Act) and others placements.

I have also mentioned that there may be advantage in there being regulations if it was held by the Court of Appeal that the plan envisaged by the local authority was lawful. That plan involves the local authority taking a very active role but it seems to me that the following points could give rise to litigation in other cases absent relevant regulations:

In this case the time table of the child means that decisions are urgently required. This is likely to be the case with other children whose welfare throughout their childhoods may be best promoted by a foreign adoption. It seems to me that the Parliamentary material I have been shown, together with the calls for the Department to consider the making of regulations, demonstrate that the policy issues have been discussed already and the decision makers already know the range of options open to them and the views of interested persons. I therefore express the hope that decisions can be made about further regulations without time consuming consultation.

Absent regulations it may be that such matters will have to be addressed on a case by case basis by the courts, if the plan proposed by the local authority is found by the Court of Appeal to be a lawful one.

For the reasons I have given I refuse to approve the visit of the chid to the USA at Step 1 of the local authority’s plan and to make the declaration it seeks.

I give permission to appeal because in my view the local authority’s plan is lawful but for the reasons I have given by reference to the undesirability of there being divergent first instance decisions in the context of issues that involve status, and have a profound influence of the lives of those concerned, I am of the view that I should not make the orders and grant the declaration sought.

If there is to be an appeal I express the hope that it can be heard as soon as is practicable.