X (A Child), Re

i Whether the applicant has an English domicile and thus the standing to apply for this adoption order. This issue was conceded by the Local Authority prior to this hearing;

Whether the ‘home’ identified in s42 (3) ACA 2002 has to be within the area of this Local Authority. This issue was conceded by the Local Authority prior to this hearing;

Whether pursuant to s42 (3) ACA 2002 X has had her home with the applicant at all times during the period of 6 months preceding his application dated 5th October 2012. This issue remains in dispute;

Whether the proposals the applicant put forward in relation to the Local Authority’s statutory investigation and assessment constitute a sufficient opportunity to see X in the home environment as required by s42 (7) ACA 2002. This issue remains in dispute;

Whether in the circumstances of this case the applicant and X have a home environment within the area of this Local Authority for the purposes of s42 (7) ACA 2002. This issue remains in dispute.

I have had the benefit of detailed skeleton arguments from Ms Cronin, on behalf of the applicant, Mr Forbes, on behalf of the Local Authority, and Ms Bennett, on behalf of the Children’s Guardian. I am grateful to them for the detail and analysis in these helpful documents. Ms Bennett’s position in her written skeleton is to support the analysis set out by Ms Cronin, although that position changed during the hearing. I heard oral evidence from the applicant and oral submissions from all counsel.

Background

The applicant was born in England. He worked in England until the late 1970s. Since then he has mainly worked abroad in the Middle and Far East. He has always retained a home in the area of the Local Authority and has spent some time back living in this jurisdiction. According to his written evidence he jointly owns properties with his former wife. The plan is to sell those properties to provide for their respective retirements. One property, the applicant has owned since 1998. It is this property he proposes he and X are based in for the purposes of the s 42 (7) ACA 2002 assessment. It is currently rented out. The applicant states his intention has always been to return to this jurisdiction when he retires. His mother, siblings and children live in this jurisdiction.

The applicant married Ms Y in 1984. He adopted her two children, by orders made in the County Court. Between 1995 and 1998 they returned to live in this jurisdiction before basing themselves in country A, although they lived ‘on and off’ back here between 1998 and 2007. These children attended boarding school in country B before attending university here. They both live here and have recently got married.

The applicant met X’s mother in country A in 2008. The mother had separated from her husband in 1999; their marriage was annulled in 2010 with the mother being granted sole custody of X. X has not seen her father since 2008, although they have had some contact via facebook. He has since remarried. Following the separation of her parents X had lived in country C with her mother and then her maternal grandmother. X and her parents are citizens of country C. X was born in country C. The mother relocated to country A in December 2007. The Applicant started living with the mother in 2009 in country A, where they remain based both working full time.

The chronology regarding the development of the relationship between the Applicant and X had to be adjusted somewhat following the oral evidence of the Applicant.

According to his written evidence, the applicant’s first meeting with X was at the maternal family home in country C in March/April 2009. She was enrolled to attend boarding school in country B from January 2011, she still attends that school. The applicant bought a house in country B about 10 years ago as a holiday home. He described it in his statement as follows ‘Now it is used by our family during X’s school holidays and as a place where I can holiday in to unwind and still run my business from’. In his first statement he said ‘We always spend all of the school holidays as a family, usually together either in England, or in our property in [country B] or in [country C]..’. In his second statement he said ‘...X has her school and family life abroad with BC and me. So, with X living with us in countries A and B and attending school thousands of miles away in country B,....’. In his third statement he said ‘We are a family with multiple homes and X lives with us in different places – in our country B home, country A and with her maternal family in country C. X has had her home with us jointly since June 2009. At that time she was attending school in country C and we spent our family holidays there and in country B. From January 2011 we have lived with her around her … school terms.’ Later in the statement he said ‘In the six months leading up 5 October 2012 when I issued my application, in addition to our daily or weekly contact, X physically spent time with us on every long school holiday at our home in … country B in April 2012 and at home in country C in August 2012.’. The clear impression from the Applicant’s statements was of regular contact with X, and since January 2011 all spending school holidays together.

The oral evidence painted a very different picture. The applicant was surprisingly vague about the detail, bearing in mind this was an important part of his case. According to his oral evidence, following the applicant’s first meeting with X in the spring of 2009 at the maternal grandparents home in country C until December 2010/January 2011 they met on three further occasions during relatively short visits to country C lasting one or two weeks (one 3 – 4 months after the first visit in 2009, over Christmas/New Year 2009/2010 and at least one occasion in 2010). The next time the Applicant saw X was around the time she started at the school in country B. The applicant stayed in his home in country B for about a week to settle her in. Thereafter, during each school holiday X either stayed with a teacher in country B or returned to the maternal grandparents in country C, save for possibly Easter 2011 when the Applicant said he stayed with her for a week at his home in country B, followed by possibly a short period in the summer 2011, again in country B. X went to the country A at Christmas 2011/New Year 2012. This was her first trip there. In 2012 the only occasion the applicant could specifically remember was a trip in October 2012 with X and her mother. X spent all the 2012 summer holidays in country C and he thought during the 2012 Easter holidays they may have spent some time staying in country B. The shorter half term holidays were generally spent by X staying with a teacher in country B. He emphasised that the mother had only limited holiday time from her job, which curtailed her opportunities to visit her daughter. He said X had not come to country A any other times as both he and X’s mother work full time, so she would have spent a lot of time on her own. X has not been to the UK. She did not accompany the applicant on his recent trips back to the UK. One occasion was for the wedding of his adopted daughter from his previous marriage. He said it would have been insensitive to have brought her with him. The second time he came back here clashed with her exams.

The applicant said in his statements and oral evidence he is in regular communication with X, they speak most Sunday evenings and are in regular email/text contact. He attached to his statement some copies of the email exchanges between them. They are affectionate and familiar in tone. There is a letter from X’s school dated 20 February 2012 which confirms that the applicant makes all financial arrangements and all matters regarding X’s travel and medical matters are through the applicant. The letter confirms the only family member who visits or picks her up is the applicant.

where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,

in any other case, to the local authority within whose area the home is.’

The arrangements under this sub-section are not agreed with the Local Authority.

Courts have subsequently looked to the intention of the provisions and have interpreted the provision so as to have application to the varied family situations (see Munby J (as he then was) Re SL (Adoption home in jurisdiction) ibid). Such pragmatic application, Ms Cronin submits, is apt in this case. Parliament did not intend section 42 (3) to exclude family adoptions where the child was in boarding school. Mr Forbes, on behalf of the Local Authority, does not disagree with that proposition. The relevant extract he referred to from Hansard supported that.

This is a more flexible, open requirement than in previous legislation. It is directed to ensure the adopter has begun exercising the functions of a parent, such that a family relationship akin to parent and child has been established.

A teenage child attending a boarding school has her ‘home’ with her parents (Re Y (Minors) (Adoption: Jurisdiction)[1986] 1 FLR 152). Sheldon X in Re Y cautioned against defining a ‘home’ and later statutes have not defined it. She submits the absence of a definition allows consideration of varied family home arrangements.

The phrase ‘had his home with...’ (emphasis added) puts the focus on the relationship between the adopter and child. This requires an evaluation whether the proposed adopter has begun to assume responsibility for and undertake the care and guidance that are the hallmarks of parental responsibility and of the child’s attachment to a home.

The test is not about the days spent physically living together; the court should take a purposive construction of the statutory text.

This requirement needs a more flexible interpretation where the child is a teenager, as compared with an infant requiring close supervision by the prospective parent, and where the family have several homes.

That the word ‘home’ in s 42 (3) is incapable of precise definition but includes an element of regular occupation with some degree of permanency. He relies on the observations of Sheldon X in Re Y (ibid) at p 140 “The further question remains, therefore, of what is to be regarded as a "home" for these purposes. It is a question to which little or no assistance in finding an answer is provided by sections 107 (1) and 87 (3) of the Children Act 1975. Nor, in my view, unless it is to be given, for any particular purpose, some arbitrary statutory meaning, is the concept capable of precise definition. Nor, too, in my opinion, should such a definition be attempted beyond indicating the principal features that a "home" may be expected to embody. Subject to that, in my judgment, it must be a question of fact in any particular case whether or not the applicant has a "home" here within the meaning of the Children Act 1975.

The purpose of section 42 (3) is to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful and the word “home” should be considered in that context. He relies on the observations of Moore-Bick LJ in Re A (A Child) EWCA Civ 41 when considering the purpose of s 42 ACA 2002. He said at paragraph 106 “Section 42 of the Act poses other difficulties, however. The section as a whole is directed to domestic adoptions and is concerned to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful.”

The question of whether a child has had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application is one of fact. In this case, he submits, the evidence does not establish that requirement. He relies on the different picture that emerged in the oral evidence, compared to that in the statements. The reality is the applicant and X have spent very little physical time together, either in country C or country B since 2009. At most there have been three or four relatively short periods in country C and the same at the property in country B, with one trip to country A (contrary to what is set out in the applicant’s statement). She has not been to this jurisdiction with the applicant. The evidence in relation to the six months preceding the application in October 2012 is that they did not spend any physical time with each other, save for possibly a short stay in the property in country B in April 2012. The applicant’s oral evidence was clear in relation to the summer holidays in 2012; X spent her whole time in country C with the maternal family.

He refutes the submission by Ms Cronin that the requirement ‘have her home’ is directed to ensure the adopter has begun exercising the functions of a parent, and the focus should be on the relationship between the adopter and child. He submits that would amount to an ‘impermissibly liberal’ interpretation of the requirement in s 42 (3). Whilst he acknowledges this provision should be construed flexibly and broadly it does not follow that it should be stretched so as to become meaningless. He submits the purpose of s 42 is to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful. The home in this context consists of a physical environment, not just a psychological relationship. Parental control and involvement from afar, even in the context of a warm and loving relationship, does not meet the relevant criteria. Occasional stays together do not, in his submission, meet the relevant requirement.

It is accepted that any period in boarding school should be disregarded. The evidence, in my judgment, establishes (contrary to the position set out in the applicant’s statements that each long school holiday since January 2011 had been spent with the applicant) that prior to October 2012 the applicant has spent only very limited physical time with X. Even adopting a wide lens, as Ms Cronin invited me to do, at most it has consisted a three or four relatively short periods spent in country C (two in 2009 and Christmas 2009/2010 and one occasion in 2010), four relatively short periods spent in the applicant’s home in country B (the first in January 2011 was to be on hand for a week or so when J started school, followed by a week or so Easter and Summer 2011 and possibly Easter 2012), one period in country A (Christmas 2011). In the context of the six month period prior to October 2012 it consists, at most, of possibly a week or so in country B, but the applicant’s oral evidence on this was somewhat vague. He thought he ‘may’ have spent some of the Easter holidays in 2012 with X in country B. So the factual position is that in the six months prior to this application X had, at most, spent only a week or so with the applicant in any home.

Whilst it is correct that the applicant appears to have taken on financial and moral responsibility in providing for X and, according to the applicant, they are in regular contact by telephone, email and text that does not, in my judgment, equate to having a ‘home with the applicant’ even allowing for the most flexible and purposive construction of the provision. Making all due allowances for the international nature of this family the purpose of s 42 ACA 2002 is to ensure the child has spent sufficient time living with the applicant in a home environment to enable the court to be satisfied that they are sufficiently well matched for the adoption to be likely to be successful. It is difficult to see how that gateway requirement has been met on the facts of this case.

Ms Cronin invites the court to look at the widest picture of the facts. I take that to mean not limiting the analysis to the six months, but to look at the modus operandi of the family outside that time period to inform the picture within the six month time frame. That, in my judgment, does not assist as the picture on the evidence is of intermittent times being spent together in different locations, the longest being no more than two weeks. It was revealing when asked where he thought X would think her home is, the applicant replied country B, more specifically her boarding school.

A powerful force in considering my decision has been the welfare considerations, which are not in dispute, and drive the court in the other direction from the conclusion I have reached. Rather like Sheldon J In Re Y I have conflicting emotions. I have no reason to doubt that it would be in the best interests of X to be adopted by the applicant. But however powerful those considerations are they cannot, in my judgment, change the hard, stubborn facts of the case, even giving the provisions their most purposive construction. None of these relatively short stays, taken individually or cumulatively could accurately describe X as having had her home with the applicant in the six months prior to the application.

Although not canvassed in argument I fully recognise that there is nothing stopping the applicant issuing another application in the future, when the factual foundation may be different. That, however, does not justify the court now stretching the gateway requirement to the limit on the facts as they stand now. To allow this application to proceed on this factual foundation effectively renders this gateway requirement to be meaningless and would, in my judgment, be driven by welfare considerations. As Munby J (as he then was) observed in Re SL [2005] 1 FLR 118 at paragraph 23 ‘As Re Y...shows there will be occasions when the plain words of the statute prevent a judge doing that which is in the best interests of the child. So be it. But that is no reason for construing the Adoption Act 1976 narrowly , or reading into it words that are not there, if the consequence is to be the denial to a child of an adoption which is plainly in his best interests. This is legislation which requires to be given a sensible and purposive construction.’

I have carefully considered the submission of Ms Cronin to the effect that the focus should be on the relationship between the adopter and the child. She relies on the language of the sub-section ‘have had [her] home with ...’. She submits the test is not about physical days, the court needs to step back and evaluate the relationship. I disagree, that is not what the provision says. That was not what was intended; otherwise it would have expressly said so. An adoption order fundamentally changes status and the gateway requirement should be construed with that consideration in mind.

Ms Cronin accepts the facts of this case are at the ‘outer limits’ of this gateway requirement. In my judgment however purposive the construction is of the relevant provisions the facts of this case are beyond those outer limits.