“This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”
Royal Courts of Justice
Before:
MRS. JUSTICE THEIS
(In Private)
Re B
Transcribed by BEVERLEY F. NUNNERY & CO
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MR. and MRS. A appeared in Person.
MS. N. FINCH (instructed by Eskinazi & Co) appeared on behalf of the Guardian.
J U D G M E N T
MRS. JUSTICE THEIS:
This is an application for an adoption order in respect of B who was born on 17 th September 1995 so is now 18 years of age. The application was issued on 1 st June 2013 when he was 17 years of age and, subject to an issue in relation to his age that I shall come to in a moment, that application is permitted pursuant to the Adoption and Children Act 2002 s.49(4) and s.47(9).
I am giving this extempore judgment so that B, the applicants Mr. and Mrs. A and the rest of the family have a decision today. I will direct a transcript of this judgment at public expense as the issues, particularly regarding the Home Office, are matters that should be in the public domain. The judgment will be anonymised so that no one will be identified.
I am enormously grateful to Ms. Finch and her instructing solicitor who have represented B with admirable skill. They have made sure the court has all the relevant information and they have greatly assisted the applicants, Mr. and Mrs. A, who are unrepresented.
B is a Nigerian national who was brought to the United Kingdom in January 2008 for what was described as “a better way of life” by somebody who was described as an uncle, but was not blood related. It appears that he arrived here on a six month visa and that his visa was not extended. B’s birth parents, KB and WB, gave their permission for him to leave Nigeria.
According to B, he lived with this uncle for about a year in east London before running away due to the emotional and physical abuse from this person, as described in his statement. Through someone he met in a park he was taken to a church in Blackheath, south east London where he was introduced to Mrs. A who is the pastor there. She and her husband took him home and he became part of their family and has remained there since January 2009.
Mr. and Mrs. A sought to try to regularise B’s immigration position. They applied to the Home Office in about April 2010 seeking leave for him to be able to remain in this jurisdiction. It appears that that application prompted a referral by the Home Office to the local authority requesting them to investigate the situation.
An assessment was carried out by social services in 2010 and Mr. and Mrs. A were approved as private foster carers for B. This, in turn, prompted them to apply for a residence order which resulted in the court directing the local authority to prepare a s.7 report. This was entirely favourable in relation to the care they were giving B. Following receipt of this report a residence order was made in favour of Mr. and Mrs. A by District Judge Simmonds on 28 th February 2011.
It appears the application to the Home Office to regularise B’s immigration position was determined and refused in August 2010. I shall return to that shortly.
Sadly, B’s birth mother, WB, died in a motor accident on 12 th May 2010.
Mr. and Mrs. A made their application for an adoption order on 1 st June 2013. Their letter in support of that application is in the papers. The birth father, KB, has sworn an affidavit (which is in the papers) confirming that he consents to the adoption application that has been made by Mr. and Mrs. A. He has also confirmed his agreement in telephone conversations that he has had with the author of the Annex A report.
The application resulted in the court, at that early stage, seeking to inform the Home Office of the proceedings.
The first in a series of orders was made by District Judge Simmonds on 13 th June 2013. This included a number of directions including that the Home Office be notified of the adoption application.
Following on from that, the court made a further order on 16 th July (again by District Judge Simmonds) which records that there was no response from the Home Office although the request having been made, it continues to make various directions in relation to the filing of the report from the local authority and the Guardian. The order notes any reply from the Home Office shall be sent to the parties and the matter was listed for further hearing on 2 nd October.
As a result of the directions made by the court, the London Borough of X (which is the relevant local authority) completed its Annex A report in relation to the adoption application. Ms. C is the author and it is dated 13 th September 2013. Ms. C has been present in court throughout this hearing and has had the opportunity to be able to add or change anything in her report as a result of the submissions that have been made to the court today.
Ms. C’s comprehensive report fully recommends an adoption order should be made in respect of B, to enable him to formally remain in the care of Mr. and Mrs. A. In the report she refers to Mr. and Mrs. A having made an application to the Home Office to regularise the immigration position, and that application had been refused. However, she notes they had submitted an appeal on his behalf.
We now have disclosure of the immigration papers from the immigration solicitors and, in fact, what appears to have happened is that following the refusal of the application in August 2010, there was a change of solicitor to a solicitor called Mr. O who was instructed in March 2011.
I have seen a bundle of correspondence from the immigration file which is in the papers here and records what has taken place since then.
Having registered that there had been a change of solicitors with the Home Office (which was acknowledged by the Home Office in March 2011) there was then a 30-page letter sent to the Home Office dated 12 th May 2011. This letter set out a detailed account of the background circumstances and effectively asked for a reconsideration of the previous refusal in August 2010. It also asked for leave for B to remain here on compassionate grounds, as set out in some detail in that letter.
That letter was sent to the Home Office on 12 th May 2011. Here we are nearly three years later, and despite chasing letters being sent to the Home Office by Mr. O on 17 th November 2011, 29 th November 2011, 16 th January 2012, 20 th February 2012, 11 th June 2012, 5 th November 2012 and 23 rd August 2013, not one response or acknowledgement has been received from the Home Office regarding that application.
This morning I was shown a letter from Capita (who appear to be instructed on behalf of the Home Office) to O Solicitors dated 28 th March 2014. It says as follows:
“Thank you for your request dated 23 rd May 2011 asking for reconsideration of the decision to refuse your client’s application for leave to remain. I apologise for the delay in responding to your client’s letter. We are in the process of reviewing your client’s request for reconsideration and would be grateful if your client could complete the attached form to provide us with an update to your client’s current circumstances. This information will assist in assessing whether your client’s case is eligible for reconsideration.”
A Capita form is attached which is about five or six pages long. The letter continues:
“Please return the form in the prepaid envelope within 14 days from the date of this letter. If we do not receive the returned form within this timeframe, your client’s reconsideration request will be assessed on the information provided at the time of the request or in which it is held on Home Office records.”
It is then signed, “Yours faithfully, Capita Business Services”. The letter is not signed by any individual. It is a pro forma letter. That is the updated position regarding the immigration application.
Returning to the chronology: the adoption team manager, FM, as part of the investigations that were carried out by the London Borough of X in their Annex A report, wrote to the UKBA on 5 th August 2013 for an update in relation to the immigration position. Ms C confirmed this morning the local authority did not receive a response from the Home Office
The Guardian was directed to file a report. She met with B and the applicants and has read the papers in this matter. She filed her report on 1 st October 2013 and recommends an adoption order is made.
Turning back to the procedural history, the matter was listed on 2 nd October, again before District Judge Simmonds. He records in order that it appeared to the court that three matters were outstanding, one of which is the reply from the Home Office. Paragraph 1 of that order, “The court shall forthwith chase the Home Office for a response to whether they wish to intervene and for them to send this to the court forthwith”. In paragraph 2 it states “The court shall forward to the parties any response from the Home Office on receipt”. The matter was listed again for final hearing on 28 th October 2013.
In the intervening period between 2 nd October and the end of October, enquiries were made by the court to see whether there had been any response from the Home Office but none had been received. On 25 th October, the court advised the parties the hearing on 28 th October was vacated due to an issue with the Home Office.
On 25 th October an order made by District Judge Simmonds states as follows:
“Upon the adoption office having contact with the Home Office, as no reply had been received from the court’s enquiries, and upon the Home Office confirming that B has no right to stay in the United Kingdom and has his own case worker and they are awaiting information from the case worker before replying. And upon the court adjourning the hearing for this information to be provided.”
The court directed the 28 th October final hearing was vacated and the time for the Home Office to provide a response as to whether they wished to intervene within the proceedings was extended to 22 nd November. The ordered provided that in the event the Home Office did not reply by 22 nd November, the court shall proceed with the application on the basis that they do not wish to intervene. The matter was listed again before District Judge Simmonds on 29 th November.
On 28 th November the court telephoned B’s solicitor to advise that some documents had been received from the Home Office. This meant the final hearing that was then listed on 29 th November 2013 may not be effective. At the hearing on 29 th November a statement with exhibits from Mr. S of the Home Office was before the court and was shown to the parties. Mr S is a Higher Executive Officer with responsibility for the custody of Home Office records. The statement raised issues regarding the date of birth for B together with issues regarding different birth certificates and their authenticity. As a result of that material being put before District Judge Simmonds, he transferred the matter to the High Court and it was listed for hearing before me on 16 th January.
Pending that hearing District Judge Simmonds made a number of directions. He directed B to file and serve a statement in reply to the statement from the Home Office by 10 th January 2014. He also directed:
“This order shall be forwarded to the Home Office and they are invited to attend the hearing at para.1, namely 16 th January 2014, to assist the court and to make any application to intervene in the proceedings on or before that date.”
Immediately following that hearing on 29 th November B’s solicitor advised the Home Office of the hearing and forwarded them a copy of the order advising them of the date of the hearing on 16 th January. On checking with the court, subsequently it was found that the court, too, had sent a copy of the order of 29 th November to the Home Office. No response was received either by B’s solicitor or by the court from the Home Office.
The matter first came before me on 16 th January. Having considered the papers, in particular B’s witness statement of 9 th January, I made the following recitals:
“The Home Office, having failed to indicate whether it wished to intervene in these adoption proceedings by today’s date as ordered by District Judge Simmonds on 29 th November, and upon the court indicating that it intends to make a declaration in relation to B’s age, and upon the court making a court request for information to the Home Office as specified in the form EX660 of today’s date, and upon the court inviting B’s current immigration solicitors to provide the solicitors for the guardian with copies of the documents and his immigration file by 23 rd January…”
I made an order that included the following:
“1. The solicitor for the guardian do forthwith serve a copy of this order and a copy of B’s witness statement dated 9 th January (along with its exhibits) on the Secretary of State for the Home Department via the Home Office liaison team at HMCTS.”
2. That the Home Office do notify the guardian’s solicitors by 14 th February whether it intends to apply to intervene in these adoption proceedings, and if it does, to issue such an application by 4 p.m. on 17 th February.
3. In the event that such an application is issued, there is to be a directions hearing listed before me on 25 th February to consider any directions that need to be made as a result of such an application with a time estimate of 30 minutes.”
I made provision that if the application to intervene was not made, the hearing on 25 February could be vacated. I listed the matter for a substantive hearing on 6 th March with a time estimate of one day to consider (and this was recorded on the face of the order) (1) whether to make a declaration in relation to B’s age, and (2) to decide whether to make an adoption order in relation to B. I made directions for the filing of further evidence, both by the applicants and by B, and I made provision, if the Guardian was so advised, to file any further report. I made directions for the filing of skeleton arguments.
That order was sent to the Home Office by B’s solicitor. The solicitor phoned the Home Office liaison team on 20 th January to check what the correct address was. They were told that the information, the EX660 and the order should only be served by fax. They sent an unsealed copy of the order I had made on 16 th January by fax to the Home Office on 20 th January. On 26 th January they sent the sealed copy of the order by fax to the Home Office. They also sent the EX660 to the Home Office so they were aware of what was required.
B’s solicitors corresponded with the court on two occasions to see whether the court had heard anything from the Home Office. They vacated the hearing on 6 th March because details had not been obtained from the Home Office in response to the EX660 and re-listed the matter for today. They informed the Home Office of this revised timetable. They finally contacted the Home Office on 26 th March. They faxed the Home Office a letter asking if they were going to respond to the EX660 or to any of the directions that had been made by the court. No response has been received from the Home Office.
It is quite clear the Home Office has been given every opportunity to participate and engage in these proceedings, not only through the efforts of the court but also by the solicitor for B.
In accordance with my directions made on 16 th January, both B and the applicants have prepared further statements that have been filed and I have read them.
The only updated information is the letter referred to above from Capita on behalf of the Home Office asking for a form to be completed in relation to B’s application for reconsideration of the refusal of his application for leave to remain. As I have indicated, that is against a background (as far as I am able to understand because the Home Office has not responded to the EX660) that B arrived here in early 2008 on what appears to have been a six month visa which was not renewed. Mr. and Mrs A sought to regularise his position by their application in April 2010. That was acknowledged on 17 th May 2010 when there was a request to the former immigration solicitors by the Home Office for a form and a method of entry questionnaire to be completed. This was completed and returned.
As I have indicated, that application was determined in August 2010. The only information I have in relation to that is the way the reasons for refusal are summarised in the letter from the immigration solicitors to the UKBA on 12 th May 2011. At p.2 of that letter they set out the basis of their refusal, effectively rejecting that any Article 8 rights had been established in favour of B to enable him to stay here.
It is of note on the information I have about the process that took place in 2010, it appears at no stage was any issue raised in relation to B’s age. New solicitors were instructed in early 2011 and they made the application in May 2011. Despite the chasing letters listed above and nearly three years having passed since that application was made, no response was received until the letter from Capita on behalf of the Home Office on 28 th March. It appears to be accepted by the Home Office, that the application in May 2011 was for a reconsideration of the refusal of B’s leave to be able to remain here.
There are three issues that I have to determine today.
Whether this hearing should be further adjourned bearing in mind the position taken by the Home Office.
If I do decide to proceed, whether I should make a declaration in relation to B’s age.
If I make that declaration and the applications falls within the provisions of the Adoption and Children Act 2002, whether I should go on to consider whether B’s lifelong welfare needs would be met by the court making an adoption order.
Should this hearing be further adjourned?
Ms. Finch, on behalf of B, submits this application should proceed. This is a case where the Home Office has been given ample opportunity to make representations and to intervene in these proceedings. They have simply not responded.
I have set out the extensive efforts that have been made to seek to engage the Home Office with these proceedings, not only by the court but also by B’s solicitors, in order to provide the court with important information so that it has the widest possible picture in relation to the background to the application it has to determine. Those extensive efforts to engage the Home Office have been met by a deafening silence.
Ms. Finch rightly drew my attention to two cases in relation to this issue. Firstly, the case of Re B (A minor) (Adoption Order: Nationality) [1999] 2 WLR 714 and, secondly, the case of ADB and KBS and MQS and the Secretary of State for the Home Department [2009] EWHC 2491 (Fam) . In Re B the House of Lords determined that the court was required to have regard to all the circumstances of the child’s case and to treat the welfare of the child throughout childhood as the first consideration. It held that in doing so it would be artificial top ignore the benefits which would accrue from a change in immigration status and that first consideration had to be given to the welfare benefits of making the adoption order even if these included the acquisition of British citizenship. The conferment of nationality, as a result of an adoption order being made, was part of the welfare landscape that the court had to consider when determining whether to make an adoption or not.
In ASB and others (ibid) the court was being asked to consider whether the position outlined in Re B needed to be reconsidered in the light of the provisions of the Adoption and Children Act 2002 being brought into effect. In paragraph 31 Bennett J sets out the relevant sections of s.1(1)-(6) of the 2002 Act:
“Section 1(1) to (6) of the 2002 Act provides as follows:-
1. Considerations applying to the exercise of powers
This section applies whenever a court … is coming to a decision relating to the adoption of a child.
The paramount consideration of the court … must be the child’s welfare throughout his life.
The court … must at all times bear in mind, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.
The court … must have regard to the following matters (among others) –
the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),
the child’s particular needs,
the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
the child’s age, sex, background and any of the child’s characteristics which the court … considers relevant,
any harm (within the meaning of the Children Act 1989 (c.41)) which the child has suffered or is at risk of suffering,
the relationship which the child has with relatives, and with any other person in relation to whom the court … considers the relationship to be relevant, including –
the likelihood of any relationship continuing and the value of its so doing,
the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.
In placing the child for adoption, the adoption agency must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background.
The court … must always consider the whole range of powers available to it in the child’s case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”
At paragraph 32 he states:
“Two fundamental changes in s.1 of the 2002 Act from s.6 of the 1976 Act [which was the relevant statutory provisions at the time of Re B] must here be noted. First, whereas under the 1976 Act the child’s welfare was the “first consideration” for the court, under the 2002 Act the child’s welfare is the court’s “paramount consideration”. Second, the child’s welfare must be considered “throughout his life” not only his childhood as per the 1976 Act.”
In paragraph 35 he continues:
“In my judgment it remains the court’s obligation post the 2002 Act to be on its guard in adoption proceedings against misuse of such proceedings. Misuse of adoption proceedings to gain a right of abode (as opposed to exercising parental authority) is most unlikely to be in the child’s welfare as well as undermining immigration policies and procedures.”
I have those last observations very much in mind. I am quite satisfied this application is not a device, by any stretch of the imagination, to gain a right of abode. Mr. and Mrs. A have responsibly taken all necessary steps at each stage to seek to regularise the position regarding their care of B. They fully cooperated with the private fostering assessment that was prompted by their application regarding B’s immigration position. They then promptly and responsibly applied for a residence order, which was made by the court. As I have said, they have subsequently assisted in supporting applications to regularise B’s immigration position. They could not have done any more.
I am satisfied the applicants, the solicitor for B and the court could not have done more to seek to engage the Home Office in these proceedings; but they simply have not responded. I am quite clear this application cannot be delayed any further. I am, of course, acutely aware that if the court does go on to grant an adoption order, it confers nationality, but I can see no more the court could have done to seek to engage the Home Office in these proceedings.
It is of particular concern there appears to have been a complete failure to comply with what, in my experience, has always been an effective procedure for this court to obtain relevant immigration information, namely through the EX660 procedure. It is normally expected that that request will be responded to within 28 days. My recent experience in other cases is that the response is normally well within that time frame. In this case the EX660 request is now 63 days old. I sincerely hope this is an isolated occasion where there has been non-compliance with the request made by the court, but I will take steps to ensure that the circumstances of this case are drawn to the attention of the Home Office.
I am quite clear this application, in the particular circumstances of this case, should proceed and there should be no further delay.
Age declaration
The next issue the court has to consider is B’s age. One of the matters that raised by the statement from Mr. S is B’s date of birth. It is raised in an unhelpful way because the statement has been provided and the issue raised, but the Home Office have been unwilling to participate in the case to assist the court further.
What is said or implied by the statement from Mr. S is that when B was brought to this jurisdiction in January 2008, it was on a passport that gave a different date of birth, namely 17 th September 1987. This would make B 20 years of age when he arrived in 2008 and would make him 26 ½ years of age now.
With the application made by Mr. and Mrs. A, they submitted birth certificates setting out his date of birth as 17 th September 1995. As far as I can see in all steps they have taken in relation to B, not only in relation to his immigration position but in all other aspects of his life, they have operated on the basis that this is his date of birth. That would have made B about 12 ½ years of age when he came to this jurisdiction in early 2008.
I consider it important the court should determine this issue with. It has to for two reasons.
Firstly, to determine whether the court has jurisdiction to be able to consider this application because, by virtue of s.49(4) ACA 2002 an application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.
The application was made on 1 st June 2013. If B’s date of birth is 17 th September 1987, he was clearly over 18 at that time. However, if his date of birth was 17 th September 1995, he was under 18 at the time when the application was issued and so the court has jurisdiction. In addition, the court would only have power to make an adoption order pursuant to s.47(9) in relation to a person who has not attained the age of 19 years. Clearly, that would be the position if B’s date of birth was in 1995, but it would not if his date of birth was in 1987.
Secondly, I consider it an important and integral aspect of B’s welfare for the uncertainty that has been raised in relation to his age to be resolved.
The jurisdiction of this court to be able to make such declarations is clearly established. There have been a number of previous cases where that has happened. Firstly, in E v London Borough of X [2005] EWHC 2811 the then President, Sir Mark Potter, made a declaration as to age within wardship proceedings. The issue was whether the child, who was the subject matter of wardship proceedings, was 16 or 19 years. He made a declaration as to the child’s age which had the consequence that the court had jurisdiction within wardship.
The second case is Lambeth Borough Council v TK [2009] 1 FCR 285 when Wilson J (as he then was) determined the court could, when seised of a matter under s.37 of the Children Act 1989, exercise its discretion to resolve a dispute as to a child’s age.
There is also a decision of mine LA v DN [2013] EWHC 2401 where I determined a child’s age as I considered it important her welfare required the court determined that issue in the context of ongoing care proceedings, although it did not, in that case, having any effect on the court’s jurisdiction.
I am clear, and it has not been suggested otherwise, that the court has jurisdiction to be able to make such a declaration. What the court needs to consider is the evidence available before it and decide whether, on the balance of probabilities, it can make that declaration. The court has a wide discretion. It is very much a question of fact and the court needs to consider and assess all the available information and evidence.
Ms. Finch, in her skeleton argument, has very helpfully set out (at paragraphs 27-28) the various strands of evidence which she submits the court is able to consider as to whether it can be satisfied, on the balance of probabilities, to make a declaration regarding B’s age.
She directs the court’s attention to the birth certificates that have been submitted in the various applications. One of the birth certificates attached to the statement from Mr. S appears to be a birth certificate used by the applicants in support of their application for a residence order in 2011. It was obtained by the Home Office from the Principal Registry. It is a birth certificate dated 25 th September 1995. It appears to be in sequential numbering to B’s twin’s birth certificate which is dated 25 th September 1995. Both of those documents give a date of birth of 17 th September 1995.
It is right to record that it appears from the information the court has there was no national system of registration of births in Nigeria in 1995. This has only more recently been rolled out. There was no coherent system in place in 1995. It is quite clear from the information provided by the Home Office attached to the statement of Mr. S that whilst they raise question marks in relation to the veracity of these documents, they also say as follows:
“I have been unable to establish the authenticity of the document and the information contained therein within the issuing authority. However, specimens of the same series of identification number are held on local resources which assist me when conducting a comparative examination.”
They go on to say that although they have been unable to obtain confirmation of the anomalies they noted with the issuing authority, they opine that the document should not be accepted as a satisfactory original example of the birth certificate, given the material available to them. However, they do not have the range of information that this court has to considering this issue.
The next matter is B’s own evidence as set out in his statement. For example, in his first statement at para.5 he says:
“The background to the circumstances of how I came to be living in the United Kingdom are as follows: prior to my mother’s death, my parents had decided that I would be better off living with a friend of my mother’s in the United Kingdom who my parents referred to as an uncle. It was therefore agreed that this uncle would bring me to the United Kingdom to live and he, rather than my parents, applied for my passport.
Until that time I had never possessed a passport. Once the passport was issued the uncle retained it and it was always in his custody. I was therefore unaware that my date of birth had been wrongly entered as 17 th September 1987. I was only 13 years old when I arrived in the United Kingdom and I do not know whether this man, who I called Uncle Femi, had his own reasons for changing my birth date.”
In his second statement, he says at paragraph 7 regarding the birth certificates:
“With regard to the birth certificates, the first birth certificate which was sent to the Home Office was in support of my immigration application for leave to remain in the United Kingdom. My father had obtained the birth certificate for me when he went on his own to the local council, because of his illiteracy he had difficulty in explaining himself, and therefore they gave him a new birth certificate instead of a re-issued copy of my original birth certificate with the correct numbered sequence with that of my deceased twin brother.
It is the new birth certificate that is exhibited at MS6 of Mr. S’s statement. It was only subsequently when I needed another copy of my birth certificate to support the adoption application that my father found my original birth certificate at his home, and that is the one that was sent to the Principal Registry of the Family Division, and that is exhibited at MS4 of Mr. S’s statement.”
That account is supported, to some extent, by the dates at MS4 the date at the bottom of the birth certificate is 25 th September 1995, whereas the one at MS6 is dated 16 th March 2009.
Ms. Finch then refers the court to the initial acceptance by the UKBA of B’s age. She derives that from the letter from the UKBA in May 2010 in response to the application made in April 2010. They sought further information on a number of matters, but do not actually say anything in relation to B’s age. That submission is supported by the information the court has, although it is not complete information in relation to the decision that was made by the UKBA in August 2010. That decision seems to be entirely based on arguments in relation to Article 8 rather than any question mark regarding B’s age.
Reliance is placed on B’s father’s sworn declaration of B’s age which is dated 29 th November 2013 (B36). I have seen the original of that document and it confirms that it was signed in the presence of the senior registrar of the High Court of Lagos, a Mrs. Edema. It confirms that B was born on 17 th September 1995 and at the time there was no law in place with the National Population Commission, so his son’s birth certificate was issued by the local council. The National Population Commission only became mandatory in about 2008/2009. He confirms the local council kept records of birth certificates before the new National Population Commission law. He makes the declaration to confirm evidence of B’s birth and that the birth certificate was not a fake. He made a declaration of truth at the end of that document.
Reliance is also placed on the acceptance of B’s age as having been born in 1995 by social and childcare workers between 2009 and 2014, even though on the Home Office’s information, B would have been well into his twenties during that time.
In particular, reliance is placed on the following documents. An initial assessment undertaken at the instigation of the Home Office by the local authority in May 2010. That document is four pages long and is in the bundle. At no stage in that document does it question B’s age.
The second document is the report of CB dated 16 th February 2011. That was the s.7 report directed by the court in relation to the residence application. Again, that document does not raise the issue in relation to B’s age as being effectively eight years older than he was said to be.
The third document is the Annex A report of Ms C dated 13 th September 2013. This is a comprehensive report detailing all of the various matters that she was required to address under Annex A in the Family Procedure Rules. At no stage in any of her extensive enquiries or her direct observations does she raise or question B’s age.
The final piece of evidence in this part is the Guardian’s report, Ms. M, dated October 2013. Again, through the enquiries she made, at no stage does she raise any question mark in relation to B’s age.
The next piece of evidence is B’s height. There is evidence from two sources regarding his change in height between June 2010 and January 2014. The looked after children medical on 11 th June (at B40) records B as being 180cm in height. On 7 th January 2014 there is a document from his general practitioner which indicates that over the next three and a half years, between June 2010 and January 2014, he had grown nearly 20cm and was standing at 199.5cm. Mr. A thinks that in fact he has probably grown even more than that by today. If B was born in 1987 he would have been 22 years of age when he was examined in June 2010, and 26 years of age when he was examined in January 2014. It is submitted that it is highly unlikely somebody between those ages would have grown nearly 20cm, whereas it is more likely that he would have grown that amount between the ages of 15 and 18.
The next piece of evidence comes from the schooling and education B has received since being in the care of Mr. and Mrs. A. During the period of time he was looked after by the uncle between 2008 and 2009 there was no record of any schooling having been made available for B. Understandably when he arrived in Mr. and Mrs. A’s care, he was resistant and anxious about attending school. However, as a result of their wise counsel and guidance, Mr. and Mrs. A encouraged him to attend FH School. He started in September 2010 in year 10 and stayed there for two years until July 2012, leaving in year 11.
At no stage during his attendance at school, and all of the activities which he was involved in, did anyone suggest that he was in fact between 22 and 24 years of age. He was accepted in September 2010 as a 14 year old rising to 15, and remained in school on that basis. This is confirmed by the records from the school and photographs in the papers confirming that in terms of age, he looked no different than any of the other students who were there.
He went on in September 2012 to the HF Academy where he currently attends. He is doing a level 3 BTEC sports diploma which is a two year course. Again, there has been no suggestion during his attendance at that Academy that he is 7 or 8 years older than they have recorded him as being.
Finally and importantly, in relation to this issue concerning age, is the evidence from Mr. and Mrs. A in their statement. They set out details of their experience of caring for B and their understanding regarding his age. They say at paragraph 9:
“We have seen B grow in height and other aspects since he has been living with us, as expected of a child in his teenage years compared to the age claimed by the Home Office. We have no doubt about his age based on the information he and his father have provided, having seen him grow and what we experienced with him as a normal teenager between the ages of 15 and 17.”
Ms. Finch submits that an important part of the evidential jigsaw is on the information that the court has, there may have been an incentive for uncle Femi (who brought B into this jurisdiction in January 2008) to demonstrate that he was over 18. B would have come in as an adult rather than a child, and consequently was less likely to attract the attention of the authorities. Bearing in mind the information the court regarding his behaviour towards B, and his motives in bringing him to this jurisdiction for the purposes of (it appears) exploiting him, there would have been an incentive for him not to provide accurate information to secure the passport. B had no part in the securing of that passport and neither did his parents. They relied, it appears, entirely on uncle Femi.
Ms. Finch submits this aspect needs to be considered in the context of the Home Office’s country of origin report on Nigeria which was updated on 3 rd February 2014. This confirms that corruption in Public Office is widespread. The court needs to weigh this in the balance when considering the position and the date of birth in B’s passport compared to the other material which is available to the court.
Ms. Finch also rightly draws my attention to the guidelines for paediatricians in relation to assessment of age, and the various authorities, in particular the case of London Borough of Croydon v Secretary of State for the Home Department [2008] EWHC 939. The court should be careful not to rely on one particular feature (for example, height) but needs to look at the wider evidential canvas.
Having considered all the evidence from these different sources I am satisfied, on the balance of probabilities, that B’s date of birth was 17 th September 1995 and, as a result, he was 17 years of age when this application was issued and this court consequently has jurisdiction.
On the information that I have seen it is inconceivable that B would have been able to live a life if he was eight years older than he is. This is particularly bearing in mind that he has been attending school and college, and been exposed to the various agencies, particularly the local authority, through the reports that have been prepared in relation to B’s care and placement with Mr. and Mrs. A, without somebody questioning or raising such a significant issue regarding his age.
Whilst I acknowledge the question of growth in height is not determinative, in the context of this case it is an important part of the evidential picture. Particularly when looking at the alternative age which during the relevant period he would have been between 22 and 25. It is highly unlikely, in my judgment, that there would have been a growth of 20cm in height between those ages, and it is much more likely that that growth in height would have taken place between the ages of 15 and 17.
I have no reason to doubt the account give by Mr and Mrs A regarding B’s age. They have boys of their own, some of whom are young adults. They have had his care for over five years and have seen nothing to suggest he is 7 years older than they have understood he is.
In reaching my conclusion, I have also taken into account that it is likely that the person who brought B over to this jurisdiction from Nigeria probably had an incentive for B to be an adult rather than a minor. This is due to the circumstances in which he was brought here and the circumstances that he has described during the period of time that he was living with uncle Femi between early 2008 and early 2009.
For those reasons I will make a declaration in relation to B’s age, being satisfied as I am on the balance of probabilities that he was born on 17 September 1995.
Adoption
The final matter for the court to consider is the adoption application. The paramount consideration for the court as required by virtue of section 1 ACA 2002 must be B’s welfare throughout his life bearing in mind the factors set out in s.1(4).
B’s father consents to the making of an adoption order. That consent comes from a document signed by him. It is also confirmed by the enquiries made with B’s father independently of that document, in particular by Ms. C in her telephone conversation with him on 12 th September 2013 as set out in her Annex A report.
It is submitted by Ms. Finch on behalf of B that for the reasons given by the local authority in their Annex A report, and by Ms. M in her report, that B’s welfare needs require Mr. and Mrs. A’s application be granted. She rightly observes that as B is a foreign national and has, at the moment, no leave to remain in the United Kingdom, adoption will have the additional benefit of conferring British citizenship on him.
However, as she submits, the House of Lords in Re B (ibid) held that the court was required to have regard to all of the circumstances of the child’s case, and to treat the welfare of the child throughout their childhood as the first consideration. In doing so it would be artificial to ignore the benefits that would accrue from a change in immigration status, and that first consideration had to be given to the welfare benefits in making the adoption order, even if these included the acquisition of nationality.
Ms. Finch makes it clear in her submissions that this is not to say that this court should make an adoption order if the sole objective of the application was to enable B to acquire British citizenship. It is submitted that there are many other welfare considerations in B’s case which require an adoption order be made.
In Ms. C’s detailed and thorough report provides an analysis at the end of her report (p.31-33) of the welfare checklist which the court is required to have regard to consider when determining whether such an order meets B’s lifelong welfare needs. Ms. M also deals with the welfare checklist in her report (p.5-11).
B’s ascertainable wishes and feelings regarding a decision relating to adoption have been carefully considered. Ms. M sets out in her report she has discussed with B at some length his feelings around the prospect of being adopted, severing all legal ties with his birth family and Mr. and Mrs. A becoming his legal parents. She reports that B explained that initially he was somewhat unsure about adoption and whether it was appropriate for him, or indeed whether it was something that he wanted. However, he explained that he had researched more about what adoption was and what it meant to children and young people. She notes he became more aware and felt it was the right choice for him.
B appeared to attach great importance to the view expressed by his father by giving emotional permission to be adopted, and described in detail the conversation that he had had with his father about this. Ms M said it was evident from her observations of the interactions between B and his prospective adoptive parents that they have a warm and reciprocally rewarding relationship, and he frequently refers to them as “mum” and “dad”. She said, “I also observed a natural interaction and playful banter between B and Mr. and Mrs. A’s son, Michael, much resembling the playful joshing of a sibling relationship”. She said , “This was heartening to observe and contributed to the overall impression that B was a much loved, accepted and wanted part of the family”.
This sentiment was echoed by Ms. C in her observations to the court today. She said when she visited the family she did not notice any discernable difference in relation to the way B was treated within the family. If she had not known any different, she would have thought that he was a birth member of that family.
In relation to B’s needs, it is quite clear that he needs to feel a sense of belonging, safety, stability and certainty. He needs to remain in the care of the people who have provided him with consistent and caring parenting over the last five years of his life, and through the particularly difficult circumstances he had to endure following his arrival in this country in the care of uncle Femi.
Considering the effect on him of ceasing to be a member of his original family and becoming an adopted person, Ms. M observes that unlike much younger children who may not have any recollection or knowledge of their birth family, she said B’s indirect contact with his birth family will continue in the main via the way that he normally does, such as Facebook and messaging services. Ms. M was quite clear that Mr. and Mrs. A were clear that they would wish to support ongoing contact between B and his birth family. They recognised the importance of him maintaining a link with his birth family as they are an important part of his identity, so much so that they plan for him to partially keep his surname when he is adopted.
Turning to his age, sex and background, B is an 18 year old young man. His initial experiences of living in this jurisdiction were not positive but it is quite clear since he has been residing with Mr and Mrs A he has had the opportunity to receive and benefit from consistent, stable parenting and care which has enabled him to make great progress in what can often be a difficult developmental stage. This was tangibly demonstrated by the encouragement given by Mr. and Mrs. A to encourage B to attend school, which he did. He did extremely well, gained his GCSEs and has gone on to further education.
Ms. M describes B as follows:
“He presents as a very articulate and thoughtful young man who appears to have been able, with the support of his carers, to reflect and develop insight into his past experiences and process these experiences to enable him to move on.
To his great credit he has managed to achieve considerable success in his short time in the United Kingdom despite the initial difficulties, and with the continued support and commitment of his current carers and family via the permanence of adoption, I, and importantly he, believes that the security and sense of belonging this will offer him will enable him to realise his full potential.”
It is also quite clear from Mr. and Mrs. A’s Nigerian origins that they will be able to meet B’s cultural and identity needs in the placement.
As to any harm B has suffered, or is at risk of suffering, the evidence clearly sets out the enormous difficulties he encountered when he first arrived here. It was only as a result of having the courage and good fortune of being able to make contact with the person who introduced him to Mr. and Mrs. A, that he has been able to put behind him the abuse and neglect he suffered when he initially entered this country. Since being in the care of Mr. and Mrs. A he has experienced a safe and stable environment with consistent and responsive care giving.
As to his relationship with other relatives, it is quite clear from the information I have seen, and as a result of the contact that B has maintained (and is encouraged to maintain by Mr. and Mrs. A) not only with his father but also with his brother who lives in Benin, he will retain (even if there is an adoption order) contact with his birth family which will be to his benefit.
B has lived with Mr. and Mrs. A since early 2009. There can be no doubt he has settled there and regards this home as his family home. He has a secure relationship with both Mr. and Mrs. A and their three children, and it has been of note that two of them have been present in court to support B today in relation to this application.
Having carefully considered the matters in the welfare checklist I am satisfied B’s lifelong welfare need, which are the court’s paramount consideration, can only be met by the security and stability that an adoption order will bring. Only an adoption order will secure lifelong his relationship with Mr. and Mrs. A.