S & T (Children), Re

I am concerned in this unusual and difficult case with the welfare of two children, S born in September 2010 in Pakistan and her younger sister, T, born in this country in June 2012. Their parents had married in Pakistan in 2009 and came to live in this country in 2012 shortly before T was born. The mother died, tragically young, of cancer in September 2013.

There had been litigation in the mother’s lifetime, triggered by the father’s removal of the children to Pakistan in December 2012. The children were made wards of court on 8 January 2013 and have remained wards ever since. The father remained in Pakistan and did not return to this country until 12 April 2014. In the meantime, following their mother’s death, the children lived initially with a maternal uncle in Reading and, in April 2014, with family in Bedfordshire for a short time before returning to the maternal uncle in Reading.

On 9 April 2014 the children’s maternal great aunt and great uncle, who live in Illinois in the United States of America, had begun proceedings under section 8 of the Children Act 1989, seeking leave to remove the children from this country to live with them in Illinois. The proceedings have not progressed as smoothly or as quickly as might have been thought desirable.

Much of the delay has been caused by the need, first, to obtain expert advice from lawyers in the United States of America as to how, compatibly with their immigration law, it might be possible for the children to go and live permanently with the applicants in Illinois and, then, to consider the implications of that advice. There is no need for me to go into the detail. Put shortly, it is common ground that, if this is to be achieved, the applicants must comply with procedures requiring completion of the United States of America’s Department of Homeland Security’s Forms I-800A and I-800. These require that the children be adopted by the applicants in accordance with the Convention on Protection of Children and Co-operation in respect of Intercountry Adoption, concluded at the Hague on 29 May 1993. Initially, the applicants were minded to seek an adoption order in this country. Their plan now is to seek an adoption order in Illinois, having first obtained from this court an order under section 84 of the Adoption and Children Act 2002.

Moylan J had given directions on 7 April 2014. His order recited that the wardship orders were still in effect. Further directions were given by Parker J on 15 April 2014 and by Sir Peter Singer on 21 May 2014.

Following a further hearing before him on 9 July 2014, Sir Peter Singer made two orders. The first permitted the applicants to take the children to the United States of America “for the purposes of a holiday … which is not to exceed 90 days in duration.” The relevant parts of the order read as follows:

“UPON [the maternal great aunt] giving the following undertaking to the court

(4)

To bring back the children to the jurisdiction of England and Wales within 90 days of leaving the jurisdiction of England and Wales or in the interim if so ordered to do so by the court.

RECITAL BY THE COURT

(5)

The wards of this court [S and T] (“the wards of this court”) are habitually resident in the jurisdiction of England and Wales.

(6)

This court has responsibility for determining issues relating to the wards of this court, which it will seek to do in a manner that promotes their best interests.

DECLARATION BY THE COURT

(7)

The court declares that the permission given below does not confer any custodial rights of any description upon [the applicants] in relation to the wards of this court for the following reasons:

(i)

“Custody” as such has ceased as a term to have legal effect by reason of section 12 of the Children and Families Act 2014;

(ii)

The arrangements as to where the wards of this court (ie the children) shall live and looked after are subject to ongoing proceedings before this court in which there are different contentions put by [the applicants] on the one hand and by the father on the other;

(iii)

The question whether, ultimately, this court will give any permission to remove the wards of this court to the United States of America (on the case of [the applicants]), subject to any immigration issues, or to Pakistan (on the father’s case), is an issue of which this court is seised and which in due course it will determine.

IT IS ORDERED THAT

(8)

The High Court of Justice of England and Wales in its capacity as Guardian of the children, [S and T], as wards of this court, hereby authorises their removal from England and Wales to the United States of America for the purposes of a holiday with [the applicants] (who are the maternal great aunt and maternal great uncle of the children) which is not to exceed 90 days in duration.”

It is common ground that this order was carefully crafted to comply with the requirements of United States of America immigration law.

In accordance with that order, the children travelled to the United States of America on 18 July 2014.

The second order made by Sir Peter contained directions including, importantly, a direction for a finding of fact hearing to commence on 22 September 2014 for consideration of the various issues identified in the Schedule to the order. In a further order dated 8 August 2014, Sir Peter gave further directions, including adding a further issue to the list of matters to be considered at the finding of fact hearing.

On 1 October 2014, Sir Peter gave judgment setting out his findings. I shall return to the detail of this below.

On 3 October 2014 Sir Peter made a further ‘holiday’ order which, except in trivial and immaterial respects, was in the same terms as his previous order of 9 July 2014. In a second order also dated 3 October 2014 Sir Peter gave directions providing for a three-day hearing to commence on 19 November 2014 “for the determination of the future arrangements for the children.”

The children returned from the United States of America nine days later on 12 October 2014 and travelled to the United States of America a fortnight later on 26 October 2014.

In the event, the hearing fixed for 19 November 2014 was vacated by an order made by Sir Peter on 10 November 2014 and re-fixed for hearing by Baker J on 2 February 2015. A recital to that order indicates that at that stage the applicants were seeking to obtain an adoption pursuant to the Convention. Sir Peter gave further directions in an order dated 21 November 2014.

The children returned from the United States of America on 17 January 2015.

Baker J gave various directions on 22 January 2015, shortly before the hearing fixed for 2 February 2015 had to be vacated because of the unexpected over-running of another case.

On 4 February 2015, Ms Deborah Eaton QC made a further ‘holiday’ order in the same terms as the previous order made by Sir Peter Singer on 3 October 2014. In a second order made the same day she gave various directions.

On 12 February 2015 the children travelled – now for the third time – to the United States of America.

On 12 March 2015 the matter came before Her Honour Judge Parry. The applicants indicated their intention to issue an application pursuant to section 84 of the 2002 Act and to “give notice to Reading Borough Council of their intention to do so pursuant to s. 44 of the Act by no later than” 20 March 2015. Judge Parry gave directions providing that the matter be listed for three days on 5 May 2015:

“for determination of the following issues:

(a)

The procedural and regulatory viability of the Applicants’ s84 application and whether there can be a non-consensual Convention adoption without public law proceedings.

(b)

Renewal of the Applicants’ permission to remove the children for a further 90 day period to the USA.”

That was the matter which, in accordance with those directions, came on for hearing before me on 5 May 2015.

The applicants issued their section 84 application on 14 April 2015. In their application, they specifically asked the court to dispense with the father’s consent on the ground that the welfare of the children requires it. They gave notice to the local authority on 15 April 2015.

Before me, the applicants were represented by Mr Damian Garrido QC and Mr Edward Kirkwood, the father by Ms Janet Bazley QC and Mr Mark Jarman, the local authority by Mr John Vater QC and the children, through their guardian, by Mr Robin Barda. I should place on record the fact that Mr Garrido, Mr Kirkwood and their instructing solicitor, Ms Ruth Hawkins of Turpin & Miller, are all acting pro bono, something which calls for public recognition in addition to what no doubt is the gratitude of their clients.

At the end of the hearing on 7 May 2015 I reserved judgment. On 11 May 2015 I notified the parties that:

“Irrespective of the eventual outcome, it is in the best interests of the children to return to the USA for a further period of not more than 90 days. This will avoid harmful disruption in the event of a final decision in favour of the applicants. It will be a necessary part of the transition if I conclude that the proceedings should be terminated at this stage in favour of the father. Either way, it is clear that the children should not, for the time being, remain in this country.

I shall, accordingly, make another 90 day order today, in the slightly amended terms discussed during the hearing.”

I made an order the same day, 11 May 2015, in the same terms as the previous orders except for (a) the omission of paragraph (i) from recital (7) and (b) the substitution in paragraph 8 of the words “to visit their relatives” for the words “for the purposes of a holiday with”. The first adjustment reflected scruples about the accuracy of the provision; the second because it more accurately reflected matters as they now stood. The children travelled again to the United States of America on 13 May 2015. They are still there.

Before going any further, it will be helpful to set out the relevant statutory and other provisions which I need to consider. I start with the provisions applicable in a purely domestic adoption.

It is clear that, in a purely domestic case, the court can make an adoption order, having dispensed with a parent’s consent, even in what for convenience I shall call a private law adoption, that is, where there have been no previous public law proceedings under Part IV of the Children Act 1989 and no placement order under section 21 of the 2002 Act: see sections 47(1), 47(2)(c) and 52(1)(b) of the 2002 Act.

In the case, as here, of a proposed adoption by a couple in accordance with section 50 of the 2002 Act, there are certain pre-requisites to the making of an adoption order:

It will be appreciated, putting the point no higher for the time being, that there may be difficulties in meeting all these requirements where, as here, the applicants have never had a home in this country.

Section 84 of the 2002 Act provides, so far as material, as follows:

“Giving parental responsibility prior to adoption abroad

(1)

The High Court may, on an application by persons who the court is satisfied intend to adopt a child under the law of a country or territory outside the British Islands, make an order giving parental responsibility for the child to them.

…

(3)

An order under this section may not be made unless any requirements prescribed by regulations are satisfied.

(4)

An application for an order under this section may not be made unless at all times during the preceding ten weeks the child’s home was with the applicant or, in the case of an application by two people, both of them.

(5)

Section 46(2) to (4) has effect in relation to an order under this section as it has effect in relation to adoption orders.

(6)

Regulations may provide for any provision of this Act which refers to adoption orders to apply, with or without modifications, to orders under this section.”

The relevant regulations are to be found in Part 2, Chapter 2, of The Adoptions with a Foreign Element Regulations 2005, SI 2005/392.

For present purposes the material regulation is regulation 11(1), of which I set out the material parts:

“The following provisions of the Act which refer to adoption orders shall apply to orders under section 84 as if in each place where the words “adoption order” appear there were substituted “order under section 84” –

…

(i)

section 42(7) (sufficient opportunity for adoption agency to see the child);

…

(k)

section 44(2) (notice of intention to adopt);

(l)

section 47(1) to (5), (8) and (9) (conditions for making orders);

…

(n)

section 50(1) and (2) (adoption by a couple);

…

(p)

section 52(1) to (4) (parental etc consent);

… ”

The effect of regulation 11, read in conjunction with sections 84(1), 84(4) and 84(5), is that:

Regulation 3 of The Local Authority (Adoption) (Miscellaneous Provisions) Regulations 2005, SI 2005/3390 provides as follows:

“(1)

For the purposes of section 44(9)(a) of the Act, the following local authorities are prescribed in the following cases.

(2)

In the case of the proposed adoption by one person who no longer has his home in England, the prescribed local authority is the local authority for the area in which that person’s last home in England was situated.

(3)

In the case of the proposed adoption by a couple who no longer have their home in England and who shared together the last home they had in England, the prescribed local authority is the local authority for the area in which that home in England was situated.

(4)

In the case of the proposed adoption by a couple who no longer have their home in England and who did not share together the last home each had in England, the prescribed local authority is the local authority which the couple nominate, being the local authority for the area in which the last home in England of one of them was situated.

(5)

In the case of the proposed adoption by a couple only one of whom ever had his home in England, the prescribed local authority is the local authority for the area in which that person’s last home in England was situated.”

It is common ground that none of these provisions applies in the present case, for the applicants have never “had their home” in England.

The issue which thus arises focuses on sections 42(7)(b) and 44(9)(b). If, as here, the applicants do not have and never have had a “home” in England, are they, for the purposes of an application under section 84, able to satisfy the requirements of sections 42(7)(b) and 44(9)(b)? I return to this below.

I turn to the Convention. Article 2(1) provides that:

“The Convention shall apply where a child habitually resident in one Contracting State (“the State of origin”) has been, is being, or is to be moved to another Contracting State (“the receiving State”) either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State or in the State of origin.”

Chapter II of the Convention sets out the requirements for intercountry adoptions. Article 4 provides that:

“An adoption within the scope of the Convention shall take place only if the competent authorities of the State of origin –

(a)

have established that the child is adoptable;

(b)

have determined, after possibilities for placement of the child within the State of origin have been given due consideration, that an intercountry adoption is in the child’s best interests;

(c)

have ensured that –

(1)

the persons, institutions and authorities whose consent is necessary for adoption, have been counselled as may be necessary and duly informed of the effects of their consent, in particular whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin,

(2)

such persons, institutions and authorities have given their consent freely, in the required legal form, and expressed or evidenced in writing,

(3)

the consents have not been induced by payment or compensation of any kind and have not been withdrawn, and

(4)

the consent of the mother, where required, has been given only after the birth of the child; and

(d)

have ensured, having regard to the age and degree of maturity of the child, that –

(1)

he or she has been counselled and duly informed of the effects of the adoption and of his or her consent to the adoption, where such consent is required,

(2)

consideration has been given to the child’s wishes and opinions,

(3)

the child’s consent to the adoption, where such consent is required, has been given freely, in the required legal form, and expressed or evidenced in writing, and

(4)

such consent has not been induced by payment or compensation of any kind.”

Article 5 provides that:

“An adoption within the scope of the Convention shall take place only if the competent authorities of the receiving State –

(a)

have determined that the prospective adoptive parents are eligible and suited to adopt;

(b)

have ensured that the prospective adoptive parents have been counselled as may be necessary; and

(c)

have determined that the child is or will be authorised to enter and reside permanently in that State.”

Chapter III of the Convention deals with the Central Authorities designated in accordance with Article 6. Article 7 provides that:

“(1)

Central Authorities shall co-operate with each other and promote co-operation amongst the competent authorities in their States to protect children and to achieve the other objects of the Convention.

(2)

They shall take directly all appropriate measures to –

(a)

provide information as to the laws of their States concerning adoption and other general information, such as statistics and standard forms;

(b)

keep one another informed about the operation of the Convention and, as far as possible, eliminate any obstacles to its application.”

Article 9 provides that:

“Central Authorities shall take, directly or through public authorities or other bodies duly accredited in their State, all appropriate measures, in particular to –

(a)

collect, preserve and exchange information about the situation of the child and the prospective adoptive parents, so far as is necessary to complete the adoption;

(b)

facilitate, follow and expedite proceedings with a view to obtaining the adoption;

(c)

promote the development of adoption counselling and post-adoption services in their States;

(d)

provide each other with general evaluation reports about experience with intercountry adoption;

(e)

reply, in so far as is permitted by the law of their State, to justified requests from other Central Authorities or public authorities for information about a particular adoption situation.”

Chapter IV of the Convention sets out the procedural requirements in intercountry adoption. I need not set out the relevant provisions in extenso. It suffices to note that:

The Convention is given effect to in this country by the Adoption (Intercountry Aspects) Act 1999. Section 1(1) of that Act provides for regulations to be made for giving effect to the Convention. Section 1(3)(a) provides that the regulations may apply, with or without modifications, any provision of the enactments relating to adoption. The relevant regulations are to be found in Part 3, Chapter 2, of The Adoptions with a Foreign Element Regulations 2005, SI 2005/392.

I go first to regulation 48:

“In the case of a proposed Convention adoption, the prescribed requirements for the purposes of section 84(3) of the Act (requirements to be satisfied prior to making an order) are –

(a)

the competent authorities of the receiving State have –

(i)

prepared a report for the purposes of Article 15 of the Convention;

(ii)

determined and confirmed in writing that the prospective adoptive parent is eligible and suitable to adopt;

(iii)

ensured and confirmed in writing that the prospective adoptive parent has been counselled as may be necessary; and

(iv)

determined and confirmed in writing that the child is or will be authorised to enter and reside permanently in that State;

(b)

the report required for the purposes of Article 16(1) of the Convention has been prepared by the adoption agency;

(c)

the adoption agency confirms in writing that it has complied with the requirements imposed upon it under Part 3 of the Agencies Regulations or corresponding Welsh provision and this Chapter;

(d)

the adoption agency has obtained and made available to the court –

(i)

the reports and information referred to in regulation 17(2D) of the Agencies Regulations or corresponding Welsh provision;

(ii)

the recommendation made by the adoption panel in accordance with regulations 18, where applicable, and 33 of the Agencies Regulations or corresponding Welsh provisions; and

(iii)

the adoption placement report prepared in accordance with regulation 31(2) of the Agencies Regulations or corresponding Welsh provision;

(e)

the adoption agency includes in their report submitted to the court in accordance with section 43(a) or 44(5) of the Act as modified respectively by regulation 11, details of any reviews and visits carried out as consequence of Part 6 of the Agencies Regulations or corresponding Welsh provision; and

(f)

the prospective adopter has confirmed in writing that he will accompany the child on taking the child out of the United Kingdom to travel to the receiving State or in the case of a couple the agency and competent foreign authority have confirmed that it is necessary for only one of them to do so.”

Regulation 49 provides that:

“In the case of a proposed application for a Convention adoption order, the report which a local authority must submit to the court in accordance with section 43(a) or 44(5) of the Act must include a copy of the –

(a)

Article 15 Report;

(b)

report prepared for the purposes of Article 16(1); and

(c)

written confirmation of the agreement under Article 17(c) of the Convention.”

Regulation 52(1) provides that:

“Subject to the modifications provided for in this Chapter, the provisions of the [2002] Act shall apply to adoptions within the scope of the Convention so far as the nature of the provision permits and unless the contrary intention is shown.”

Regulation 55 provides that:

“The modifications set out in regulation 11 shall apply in the case where a couple or person habitually resident in a Convention country outside the British Islands intend to adopt a child who is habitually resident in England or Wales in accordance with the Convention.”

Regulation 56 provides that:

“Section 42 of the Act shall apply as if –

(a)

subsections (1)(b) and (3) to (6) were omitted; and

(b)

in subsection (2) from the word “If” to the end of paragraph (b) there were substituted “In the case of an adoption under the Convention,”.”

Regulation 57 provides that:

“Section 44 of the Act shall apply as if subsection (3) was omitted.”

Regulation 58 provides that:

“Section 49 of the Act shall apply as if –

(a)

in subsection (1), the words from “but only” to the end were omitted;

(b)

subsections (2) and (3) were omitted.”

It will be noticed that, except possibly for the general words in regulation 52, none of these regulations affects either section 42(7)(b) or sections 44(2) and 44(9)(b) of the 2002 Act.

In these circumstances, and having regard to the various provisions of the 2002 Act, the Convention and the different Regulations to which I have referred, there are four issues which I have to determine.

The first issue is whether the applicants are able to bring themselves within section 84 of the 2002 Act. For reasons which will be apparent from what I have already said, this issue focuses on sections 42(7)(b) and 44(9)(b). If, as here, the applicants do not have and never have had a “home” in England, are they, for the purposes of an application under section 84, able to satisfy the requirements of sections 42(7)(b) and 44(9)(b)?

At this point I need to turn to the authorities.

I start with Re SL (Adoption: Home in Jurisdiction) [2004] EWHC 1283 (Fam), [2005] 1 FLR 118. That was a case under the Adoption Act 1976 where I had to consider the meaning of sections 13(2), 13(3)(b) and 22(1) of that Act, corresponding in broad terms, though not in all respects, with, respectively, sections 42(2), 42(7)(b) and 44(2) and 44(9)(b) of the 2002 Act. Following the earlier judgment of Sheldon J in Re Y (Minors) (Adoption: Jurisdiction) [1986] 1 FLR 152, I held that since the “local authority” referred to in sections 13(3)(b) and 22(1) of the 1976 Act (now, sections 42(7)(b) and 44(9)(b) of the 2002 Act) must be a local authority in England or Wales, it followed that the “home” referred to sections 13(3)(b) and 22(1) must also be in England or Wales: Re SL, paras 12, 14, 17.

The more important, and in my judgment determinative authority, is the decision of the Court of Appeal in Re A (Adoption: Removal) [2009] EWCA Civ 41, [2009] 2 FLR 597. That was an adoption agency case, so it was section 42(7)(a) rather than section 42(7)(b) which applied. And the main focus of the argument was as to the meaning of the word “home” in section 84(4), corresponding to section 42(2)(a), of the 2002 Act, and the phrase “home environment” in section 42(7). On the latter point the Court of Appeal, adopting the same approach as in Re SL, held that there was no need for either the “home” or the “home environment” to be within the jurisdiction. However, in the course of analysing the legislation, the court considered the meaning of section 42(7)(b).

I start with what Wall LJ said (paras 64-65):

“64

I accept, of course, that s 42(7)(b) means what it says, namely that ‘in any other case’ (that is to say where a child has not been placed for adoption by an adoption agency) the ‘home environment in which ‘sufficient opportunities’ to see the child must be given to ‘the local authority within whose area the home is’. That is plainly a reference to a local authority within the UK, and equally plainly, in a s 42(7)(b) case the ‘home’ has to be in the UK. So much is, I think, uncontroversial.

65

It does not, however, follow in my judgment, that in a s 42(7)(a) case, the ‘home’ has to be in England and Wales…”

Moore-Bick LJ agreed (para 92) with Wall LJ’s reasoning. He said this (para 109):

“That leaves the question whether s 42(7) requires the home to be within the jurisdiction … In cases other than those in which the child has been placed for adoption by an adoption agency, the wording of subs 7(b), with its reference to ‘the local authority within whose area the home is’ makes it clear that the home must be within the jurisdiction, but I see no reason why the same restriction should apply where an adoption agency is involved. For the reasons given by Munby J in Re SL (Adoption: Home in Jurisdiction) [2004] EWHC 1283 (Fam), [2005] 1 FLR 118 it is not necessary that the ‘home environment’ to which reference is made in the opening lines of subs (7), should refer to the home to which reference is subsequently made in (7)(b). I think the purpose of subs (7)(b) is to ensure that where no adoption agency is involved, a local authority takes responsibility for carrying out the assessment that must be made before an adoption order is made. Since each local authority is responsible only for its own area it was necessary to impose that duty on the local authority for the area in which the home lies. Where an adoption agency is involved, there is no need for any similar provision. Accordingly, I do not think that one can infer from subs (7)(b) that the home must be in the jurisdiction in any case falling outside its ambit.”

Thorpe LJ (para 114) agreed with both judgments.

Pausing, therefore, at that stage in the analysis, it would seem clear that the applicants, although they can satisfy the requirements of section 84(4) and of the opening words of section 42(7), are unable to satisfy the requirements of section 42(7)(b), for they do not have a “home” within the area of an English local authority. By parity of reasoning, in my judgment, the same must apply in relation to sections 44(2) and 44(9)(b), it being common ground that it is section 44(9)(b) and not section 44(9)(a) which applies in the present case.

Is there anything in the Convention, or in the relevant provisions of Part 3, Chapter 2, of The Adoptions with a Foreign Element Regulations 2005, SI 2005/392, to justify any different conclusion? In my judgment there is not.

In an attempt to escape from this reading of sections 42(7)(b) and 44(9)(b), reliance was placed on the concluding words of regulation 52 – “so far as the nature of the provision permits and unless the contrary intention is shown” – especially when read in conjunction with the Convention, in particular, Article 7(2)(b). I am more than content to apply a sensible and purposive construction to the 2002 Act and the Regulations, and I bear in mind that the Convention has an autonomous meaning which is not to be confined by any narrow domestic reading, but the provisions of sections 42(7)(b) and 44(9)(b) are clear and plain. Regulations 56 and 57, as we have seen, expressly modify sections 42 and 44 in the context of a Convention adoption, but not in such a way as to overcome the obstacles that face the applicants in the present case. The qualifying words in regulation 52, in my judgment, simply cannot bear the weight of the argument.

It follows, in my judgment, that the applicants are unable to meet the requirements imposed by sections 42(7)(b) and 44(9)(b) of the 2002 Act. On that ground alone their application cannot at present succeed. If it is to be salvaged, the applicants must first establish a home in this country, even if only on a temporary basis: cf, Re G (Adoption: Placement Outside Jurisdiction) [2008] EWCA Civ 105, [2008] 1 FLR 1484, para 18, and ECC (The Local Authority) v SM [2010] EWHC 1694 (Fam), [2011] 1 FLR 234, para 3. It will be noticed that the dis-application of section 44(3) of the 2002 Act by regulation 57, means that the notice required by section 44(2) does not have to be given before the application is made; it suffices that it is given before the order is made.

The consequence of this is that the notice purportedly given by the applicants to the local authority on 15 April 2015 was of no effect. The notice was served on the local authority, it would seem, because of the children’s connection with the area, which is irrelevant for this purpose.

The father opposes the making of any adoption order and any order under section 84 of the 2002 Act. The applicants submit that his consent can be dispensed with. He disputes this.

In my judgment, it is clear that there is nothing in section 84 itself to preclude the court dispensing with the father’s consent. Regulation 11(1)(p) is clear recognition that section 52(1) applies to an order under section 84. Moreover, Form A61, the application form to be used in applications under section 84, contains, in Part 3, para (j), provision for an application to dispense with parental consent. The father’s argument, however, is based on the wording of Articles 4 and 16 of the Convention which, he submits, plainly contemplates that a Convention adoption such as is proposed in this case cannot proceed in the absence of parental consent.

I have set out the relevant passages already, but for convenience I will repeat the critical wording. Article 4(c)(2) provides that an adoption can take place “only” if:

“the persons … whose consent is necessary for adoption … have given their consent freely.”

Article 16(1)(c) provides that the Central Authority of the State of origin “shall”:

“ensure that consents have been obtained in accordance with Article 4.”

Article 16(2) provides that the Central Authority of the State of origin “shall”:

“transmit to the Central Authority of the receiving State … proof that the necessary consents have been obtained.”

The Convention does not contain any provisions identifying what consents are necessary. On a plain reading of the Convention, it leaves it to the domestic law of the State of origin to determine what, if any consents, are “necessary”. This is borne out by paragraph 129 of the Explanatory Report on the Convention drawn up by G Parra-Aranguren:

“The persons whose consent is necessary on behalf of the child are determined by the applicable law: it will usually include … the child’s biological parents.”

English domestic law enables the court to “dispense with” a parent’s consent in accordance with section 47(2)(c) of the 2002 Act if the requirements of section 52(1)(b) are satisfied. Those provisions apply both where the application is for an adoption order and where the application is for an order under section 84: see regulation 11(1)(l). They likewise apply in a Convention case: see regulation 55.

The point is, ultimately, a very short one, incapable of much elaboration, but, in my judgment, where the court has “dispensed” with a parent’s consent in accordance with sections 47(2)(c) and 52(1)(b), that parent’s consent is no longer “necessary” within the meaning of Article 4(c)(2). It is not “necessary” because it has been “dispensed with”. It follows, in my judgment, that the court can in principle, as the applicants contend, dispense with the father’s consent in the present case.

It is pointed out that this reading of the Convention conflicts with the understanding which appears to underlie FPR Rule 14.9(1):

“This rule applies where the applicant wants to ask the court to dispense with the consent of any parent or guardian of a child to –

(a)

the child being placed for adoption;

(b)

the making of an adoption order except a Convention adoption order; or

(c)

the making of a section 84 order.”

The words I have emphasised seem to assume that there can be no dispensing with consent in the case of a Convention adoption order; that the question of dispensing with consent does not arise in a Convention adoption application because there is no provision for dispensing with consent. Nor, apart from FPR 14.9(1) is there any other rule covering the dispensing of consent in such a case.

I remain unpersuaded by the terms of FPR 14.9(1) that there can be no dispensing with consent in the case of a Convention adoption order. Neither the language of the Convention itself nor the provisions of the relevant regulations have that effect. That being so, nothing turns on FPR 14.9(1), which cannot, as a matter of law, affect the meaning which would otherwise be given to the Convention, the 2002 Act and the regulations.

I should add that there was a certain amount of debate as to how precisely the processes spelt out in Articles 14-17 of the Convention and in regulation 48 would – indeed, it was suggested, could – apply if a parent’s consent was to be dispensed with. There is no need for me to go into this in any detail. I am wholly unpersuaded that it is not possible, though it would probably require a split hearing.

It is submitted that the children are no longer habitually resident in this country. The argument is based essentially on the amount of time they have spent in the United States of America since 18 July 2014.

In my judgment the answer to this proposition is provided by the established jurisprudence of the Court of Justice of the European Union and, in particular, its recent judgment in C v M (Case C-376/14 PPU) [2015] Fam 116, [2015] 1 FLR 1, paras 51-52. Having referred to its earlier judgments in A (Area of Freedom, Security and Justice) (Case C-523/07) [2010] Fam 42, [2009] 2 FLR 1, and Mercredi v Chaffe (Case C-497/10 PPU) [2012] Fam 22, [2011] 1 FLR 1293, the court said (citations omitted):

“51

In those judgments the court also held that a child’s habitual residence must be established by the national court, taking account of all the circumstances of fact specific to each individual case. The court held in that regard that, in addition to the physical presence of the child in a Member State, other factors must also make it clear that that presence is not in any way temporary or intermittent and that the child’s residence corresponds to the place which reflects some degree of integration in a social and family environment (emphasis added).

52

The court explained that, to that end, account must be taken of, inter alia, the duration, regularity, conditions and reasons for the stay in the territory of a Member State and for the family’s move to that state, the child’s nationality, the place and conditions of attendance at school, linguistic knowledge and the family and social relationships of the child in that state.”

Very recently, in In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2015] UKSC 35, [2015] 2 WLR 1583, para 16, the Supreme Court made clear that “It is therefore the stability of the residence that is important, not whether it is of a permanent character.”

In my judgment, in all the circumstances and not least having regard to the carefully crafted provisions of the orders made on 9 July 2014, 3 October 2014 and 4 February 2015 and, in particular, the provision requiring the children to be returned to this country at any time if the court so ordered, the presence of the children in the United States of America has been – designedly so – both intermittent and lacking in stability. The children remain habitually resident in this country.

The father submits that, even taking all the available material at its highest, there is no basis upon which the court could properly dispense with his consent and that on this ground alone I should dismiss the applicants’ claim here and now.

In short, the father’s case is that, although he has been the subject of many serious findings – a proposition not challenged before me – they cannot be determinative. Indeed, it is said, they are not sufficient, on a proper welfare analysis, to justify the severing of the children’s relationship with him through adoption.

It is properly common ground before me that, if the father’s consent is to be dispensed with, the applicants have to demonstrate that “nothing else will do”: see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625. As the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.” The local authority makes the same point when it observes, and I agree, that what might ‘tip the balance’ in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.

Putting the issue into context, there are two striking features of this case. The first is that the local authority, having considered the matter very carefully, has doubts (a) whether the ‘threshold’ in section 31 of the 1989 Act is met and (b) whether, even if threshold is met, it would apply for a care order, let alone a placement order. The second is that, in truth, adoption is being considered here only because of the seeming imperatives of United States of America immigration law. As the local authority puts it, the issue of adoption would certainly not have arisen but for the stance of the United States of America’s authorities. Counsel for the guardian was equally explicit: “It is purely the immigration requirements of the USA which dictate that although the dispute is between family members, a placement with the applicants will require an adoption process.”

I make clear that neither of these factors can alone, or in combination, be determinative. One can, for example, conceive of a case in which “nothing else will do” precisely because of a requirement of foreign immigration law. But they are, nonetheless, very striking features of this case which must, at the very least, give one pause for thought.

What are the matters alleged against the father? They include, but are not limited, to the specific matters found by Sir Peter Singer as set out in his judgment given on 1 October 2014:

As against this, the following matters have to be borne in mind:

I have before me a report by an independent social worker, LB, dated 10 November 2014 and the Cafcass Case Analysis of the children’s guardian, JP, dated 26 January 2015.

LB’s report contains these two illuminating passages:

“In the area of practical needs I do feel that [the father’s] reports and photographs about how he can provide for their material needs such as a comfortable home, proper education and play activities are genuine. He is also clearly able to provide positive parent-child interactions and is aware of their need for reassurance, physical affection and stimulation. I would say his time spent with his children is of a generally high quality.

It is in the realm of their emotional needs that I have reservations about [his] parenting capacity. I feel that he has little awareness or insight into how much pain and grief he caused them in removing them from their mother when she was so vulnerable and when he basically removed himself from their lives. To me the latter was an act of thoughtlessness that was likely to leave the children feeling rejected and to have caused uncertainty about their relationship with him.”

She expressed her conclusion as follows:

“Overall my conclusion is this. [The father] has a positive relationship with his children as observed in his contact with them. However, I believe that there is a difference between spending short periods of enjoyable time with children and having their full time care.

I am concerned that his repeated denial about not having had permission to take the children to Pakistan and the long absence from the children indicates a lack of insight. In my opinion he does not have the children’s long term interests at heart because of a lack of insight

Another important issue is his reliability in what he says and in his actions. Having examined this during my involvement in this matter in my opinion he has clearly been unreliable and in my view this would not indicate a positive outcome for these children. I therefore cannot support his having their full time care.”

Earlier she had said this:

“I do feel there is merit in his continuing to have a relationship with them in future albeit on a more limited basis but it will maintaining the links with him which is in my opinion will be a likely contributor to their sense of belonging and identity.”

She reinforced this point in an email dated 23 January 2015:

“I would add that my report emphasised the importance of the children spending time with their father. I do not detract from this view despite my conclusions. I realise any adopters would have to accept and agree to this. Unusually this is a family placement and his contact is very positive.”

The father’s tart observation on this is that open adoption is not recognised in the United State of America.

JP’s Case Analysis concludes with this professional judgment and recommendation:

“I do not believe the father can meet the children’s global needs to the extent that [the applicants] can. I have sought in this report to delineate the differences between the father as a potential long term carer for the children in Pakistan and their great aunt and uncle in the USA.

The father’s position is not without merit and this is a finely balanced decision. If there was no one but the children’s father to care for them it is likely that despite his deficits he might be considered good enough. However if there is an alternative, and I accept that the mechanism for achieving an adoption placement for the children in the USA is inchoate, I take the view for the reasons adumbrated within this report, that this is preferable and in the children’s best lifelong interests than living with their father in Pakistan.

I fall back on the aspiration that this Court can do better for these children than place them with their father in Pakistan; it can honour and make possible their mother’s legacy because she knew what was best for her daughters.

Recommendations

I recommend that the father’s application to remove the children to Pakistan is refused.”

The father submits that this falls “far short” of satisfying the test for dispensing with consent.

In these circumstances, the first question I have to consider is whether, on the evidence currently before me, I could be satisfied that the father’s consent “requires” to be dispensed with (the language of section 52(1)(b) of the 2002 Act) within the principles set out in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, and In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035; whether I could be satisfied that “nothing else will do.” The short answer is that I could not be so satisfied. I agree with the father that the material at present before the court falls far short of meeting the required standard. Taking the matters I have summarised in paragraph 68 above at their highest, the case for adoption is simply not made out. One really only has to consider what is said in the reports of LB and JP and, equally significant, what those reports do not say.

This being so, the second question is whether the proceedings should nonetheless continue. This comes down to two questions: (1) Is there some solid, evidence based, reason to believe that with further forensic activity – the testing of the existing evidence by cross-examination or giving the parties an opportunity to adduce further evidence – the conclusion might be different? This requires a robust and realistic appraisal of what is possible, an appraisal which is evidence based, with a solid foundation, not driven by sentiment or a hope that ‘something may turn up’. (2) Is there some solid advantage to the children in continuing the proceeding?

In my judgment, there is no basis in the materials currently before the court for any belief that prolongation of the process carries with it any realistic prospect of the court ever being satisfied that the father’s consent requires to be dispensed with, that nothing else will do. The deficit in the existing evidence is simply too great to imagine that there is any realistic prospect of the gap being bridged. And in the circumstances, not least bearing in mind the length of time these proceedings have been going on, far from there being any solid advantage to the children in continuing the proceedings, their welfare requires finality now.

The proceedings should now be brought to an end.

I am very conscious that the consequence of this, in a sense, is that the father wins by default. The children go to him because the only alternative is ruled out because adoption is ruled out. But it is fundamentally important that children are not to be adopted merely because their parenting is less than perfect, indeed, perhaps, only barely adequate. To repeat what was said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134, “It is not enough to show that a child could be placed in a more beneficial environment for his upbringing.”

I will need to consider with counsel the appropriate way forward in the light of this judgment.

This judgment was sent to the parties in draft on 16 June 2015. A short hearing took place later the same day. On 17 June 2015 I was invited by the parties, and agreed, to make an order the key provisions of which were as follows:

“Upon the father agreeing to make arrangements to facilitate the gradual return of the children to his care once they are returned to England, in consultation with the applicants, local authority, and guardian

IT IS ORDERED THAT:

1

The applicants’ application for an order pursuant to s84 of the Adoption and Children Act 2002 is dismissed.

2

The children shall remain wards of court until further order.

3

The children shall return to the jurisdiction of England and Wales on or before 7 August 2015 …

4

Upon their return to the jurisdiction, the children shall live with the father in accordance with arrangements to be agreed or further ordered prior to their return.”

The purpose of the wardship is to facilitate implementation of the arrangements referred to in the order. I envisage that thereafter the children will be de-warded.