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:

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:

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:

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:

Both of the couple must have been habitually resident in a part of the British Islands for not less than one year ending with the date of the application for the adoption order: section 49(3).

They must have given notice to the appropriate local authority of their intention to apply for an adoption order not more than two years or less than three months before the date of the application for the adoption order: sections 44(2), 44(3). This triggers an obligation on the local authority to investigate and report: sections 44(5), 44(6). The “appropriate local authority” is, in cases prescribed by regulations, the authority so prescribed, and in any other case “the local authority for the area in which, at the time of giving the notice of intention to adopt, they have their home”: section 44(9). The relevant regulations in England (there are different regulations in Wales) are The Local Authority (Adoption) (Miscellaneous Provisions) Regulations 2005, SI 2005/3390.

The child must have had his home with one or both of the couple at all times during the period of ten weeks preceding the application: section 42(2)(a).

The court must be satisfied that “sufficient opportunities to see the child with … both of them together in the home environment have been given … to the local authority within whose area the home is”: section 42(7)(b).

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:

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

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

Section 49(3) does not apply: see section 84(1).

Section 44(2) applies, and with it sections 44(5) and (6), subject to the substitution of the words “order under section 84” for the words “adoption order”.

Section 42(2)(a) does not apply; instead, section 84(4) does.

Section 42(7) applies, subject to the substitution of the words “order under section 84” for the words “adoption order”.

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

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:

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

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

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:

Article 14 requires the prospective adopters to apply to the Central Authority in the State of their habitual residence.

Article 15 provides for the Central Authority of the receiving State, if satisfied that the applicants are eligible and suited to adopt, to prepare a report including information about, inter alia, their identity, eligibility and suitability to adopt, and to transmit the report to the Central Authority of the State of origin.

Article 16 provides for Central Authority of the State of origin, if satisfied that the child is adoptable, to prepare a report, including information about, inter alia, the child’s adoptability, background, and family history, to “ensure that consents have been obtained in accordance with Article 4”, to determine whether the envisaged placement is in the best interests of the child, and to transmit to the Central Authority of the receiving State its report on the child and “proof that the necessary consents have been obtained”.

Article 17 provides that the decision in the State of origin that a child should be entrusted to prospective adoptive parents may only be made if the Central Authority of that State has ensured that the prospective adoptive parents agree, that the Central Authorities of both States have agreed that the adoption may proceed, and that it has been determined, in accordance with Article 5, that the prospective adoptive parents are eligible and suited to adopt and that the child is or will be authorised to enter and reside permanently in the receiving State.

Article 19(1) provides that the transfer of the child to the receiving State may only be carried out if the requirements of Article 17 have been satisfied.

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:

Regulation 49 provides that:

Regulation 52(1) provides that:

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):

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 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:

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):

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):

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:

Domestic violence of the father inflicted on the mother in August 2012 (judgment, paras 28-29): details can be found in the maternal uncle’s statement dated 11 April 2014.

The fact that the father removed the children to Pakistan in December 2012 without the mother’s consent (judgment, para 80(i)) – something emotionally abusive of both the mother and the children.

The fact that the father in effect abandoned the children between March 2013 and April 2014 (see paragraph 2 above), though he claims this was on the basis of legal advice he received in Pakistan.

The unlikelihood of the father fostering any kind of relationship between the children and the maternal family (judgment, para 79) – though this is something he now says he will do: see his statement dated 31 October 2014.

The fact that the father put forward two bogus documents: a purported will of the mother dated 29 August 2013 and a purported “confession” of the mother (judgment, paras 80(ii) and 80(iii)).

The fact that the father “laid the ground for attempting” to obtain the insurance monies arising out of the mother’s death (judgment, para 80(v)).

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

Sir Peter Singer’s finding that the applicants and the children’s maternal uncle “deliberately” did not inform the father of the death of the mother “in order, as they sought, better to advance their own case for the children to remain with the mother’s family and in order to distance themselves from him for reasons which, because of his behaviour, are apparent” (judgment, para 80(vi)).

The quality of the contact between the father and the children as demonstrated, for example, by the records of contact sessions on 15, 17, 21 and 23 October 2014.

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:

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

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: