Z (A Child : Egyptian fostering UK adoption) (Rev 1)

This case concerns an application for an adoption order under the Adoption and Children Act (ACA) 2002 for Z, a little girl who is now six: she was born in Egypt on or about 29^th October 2010 to unknown parents and was found abandoned. Z had been placed in the care of T (the Applicant) a British citizen living and working in Egypt and her Egyptian husband, K (the 1^st Respondent), by an orphanage run by a UK charity in 2011 with the approval of the Family and Childhood Division of the Ministry of Social Affairs (“the Ministry” - the 4^th Respondent). The local authority Liverpool City Council (LCC – the 2^nd Respondents) have been aware of Z’s presence in the UK since October 2013 and support the adoption application. Z herself is represented by counsel through her guardian (she is the 3^rd Respondent). Z has lived with T since she was an infant, at first in Egypt and then in England, since she was brought here by T in July 2013 for a visit, with the approval of K and of the Egyptian authorities.

The Court has before it three inter-related applications: the first, being an application by T to adopt Z made on 25th November 2013 (permission was granted by this Court to make the application on 26th March 2014); the second is an application in the alternative by T for a Residence Order (now Child Arrangements Order) dated 13th February 2014 under the Children Act (CA) 1989; and the third is the application by the Ministry of Social Solidarity for return of the child to Egypt under the inherent jurisdiction; dated 2nd August 2016.

In May 2013 T, while living in Egypt, applied to the Home Office for permission for Z to enter the UK as a visitor; Z was given entry clearance until 1^st January 2014. T and K were given permission by the Egyptian authorities to travel with Z between 1^st July 2013 and 1^st January 2014. Z, accompanied by T alone, entered the UK on 1^st July 2013 and has remained here since, in T’s care since. The application for an adoption order was made by T in England on the 25^th November 2013. The Home Office, the British Embassy in Egypt and the Egyptian Embassy in London were served with the first order made by this Court on 26^th March 2014, and although the Egyptian authorities informed the child’s solicitor and the Foreign Office of their objections to the application and despite further court orders inviting their intervention, it was not until December 2015 that the Egyptian Ministry of Social Solidarity applied to be joined as a party as a result of which the final hearing, due to take place in January 2016 was adjourned. It took place from 30^th August 2016 to 8^th September 2016 with full participation of all parties except K (I shall return to his participation later; although acting in person, he was given some assistance by the Ministry and their solicitors before, during and after the hearing.)

The application for the adoption order is supported by the child’s guardian and by the responsible local authority. The Egyptian authorities oppose Z’s adoption by T and seek her return to Egypt with or without T. The case involves a conflict between the law of England and Wales and those of Egypt, particularly in respect of adoption, which has raised sensitive cultural and religious issues as well as legal conflict. The circumstances of Z’s retention in this jurisdiction, the manner in which she was brought here, ostensibly for a visit, her long term future and her individual legal status in international law add to the complexities of this case. Ultimately, however, all parties agree, it is the best interests of Z that must prevail and it is her welfare now, and in the future, that is this court’s paramount consideration. There has been no dispute regarding this court’s jurisdiction, which is based on the child’s habitual residence in England.

Prior to the trial this court was sent a document setting out some agreed facts by way of background, by those representing the applicant, the local authority, the child’s representatives and the Ministry but, during the hearing, it became apparent that K did not agree with all of the facts as set out in that document; this was, in part, because he had not fully participated in the proceedings until the hearing which started at the end of August 2016. With that understanding I set out the facts as accepted by all the other parties, and, to a large extent, by K; in conjunction with those facts that were not in dispute during the hearing; where there is a material dispute as to the facts it is set out in this narrative.

The identity, background and religion of Z’s parents is unknown; she was born on or around 29th October 2010 and found abandoned as a new-born baby on 30^th October 2010 in a cardboard box in a street in Isna or Esna, a city south of Luxor, Egypt. She was taken by the police and placed in the Al-Shams Al-Mushriqa Foundation orphanage (otherwise known as the “Sunshine Orphanage”; a UK charity, the Sunshine Project, provides help by means of sponsorship funding and grants to the orphanage) in Luxor. Following the standard practice in Egypt Z was given a name and a birth certificate was issued by the Civil Affairs Authority as a result of the police report. The names of her parents recorded on her birth certificate are, therefore, entirely fictitious.

T is a British citizen, raised as a Christian who has now returned to the UK and is habitually resident in England. Since 2006 and for a number of years thereafter, T lived and worked in Egypt, where she had a number of business interests. On her return T took up temporary work with an estate agency, she now works as an administrator in the NHS; a position which allows her greater flexibility in looking after Z.

K is an Egyptian citizen, he is a Muslim and practises as a lawyer in Luxor and in the south of Egypt. T and K met in southern Egypt in 2007, through T’s business interests and went through a customary marriage ceremony on 8^th June 2008. At the time according to T she understood that K was had separated from and divorced both his previous English wife and his Egyptian wife with whom he had three children.

Later, in 2012, T willingly converted to Islam so that the couple could register their marriage with an Egyptian court with the intentions that Z could be formally placed with them. There is some dispute as to when Z came to live with T and K, who spent most of his time living with her in the villa she rented near Luxor, returning home to “visit his family” at least once a month. It is accepted that Z had been visited regularly in the orphanage by T, and that she was spending an increasing amount of time living at T’s villa with the consent of the Sunshine Orphanage. In his evidence K at first accepted, and later disputed, that Z living their full time by the time of her first birthday. Officially, at least as far as the Ministry is concerned, Z did not get placed full time with K and T until after the placement was formally sanctioned in 2013.

K has resumed his marital relationship with his Egyptian “first wife” and now lives with her and their three children. According to T, and as accepted by the Ministry at the outset of the hearing, K was divorced and separated from his Egyptian wife when he and T married. K himself disputes this and says that he has never divorced his Egyptian wife and that T was always aware of this; during the hearing the court was shown a marriage certificate the English translation of which clearly said that K was not married although, apparently, the Arabic version said that he was married. I am unaware of the precise and current status of this marriage between T and K in Egypt.

In 2006 when T met K, he had been providing some legal services to the orphanage; both T and K had provided a good deal of support to the orphanage by way of money and other donations. It was through this link that T was introduced to Z, in 2011. T became very attached to the baby and wanted to care for her. T and K told the orphanage that they wanted to care Z at home and for her to come and live with them as their child. After this they were visited at the villa rented by T by workers from the Family & Childhood Division of the Ministry of Social Affairs who found the home to be suitable. They were considered fit to be entrusted “with the full and permanent raising” of Z and she was placed with them before her first birthday according to T in September 2011 (this was later disputed by K).

The Egyptian documents which are available to this court disclose that the couple were approved as carers for Z on or about 23^rd April 2013. For the purpose of this case the legal position in Egypt is that any child placed in foster-care with a family remains under the auspices and the monitoring processes of the Ministry of Social Affairs until the age of 18. It is T’s case that she believed that she and K were adopting Z; that she had taken the decision to convert to Islam as part of this process; and that K, who had advised her and been responsible for all the legal arrangements, had told her throughout that Z was being adopted; and, that she did not know or understand that there could be no adoption under Egyptian law.

In support of her case it is a fact that K referred to Z as his adopted daughter in the documents, in English, he provided to this court at the commencement of these proceedings when, at first, he consented to the application for an adoption order. Later, and during the hearing, it was K’s case that he had always made it clear to T that the arrangement was for Z to be fostered and not adopted, and that Z could not be adopted in Egypt. He also claimed that what he has been agreeing to, when consenting to the adoption application, was for Z to remain in the UK for a longer visit than had originally been planned and not to her adoption.

On 21^st May 2013 T applied, in Cairo through the British Embassy there, for permission for Z to enter the UK as a visitor; in the application she said that she and K had adopted Z in Egypt and that she wanted to visit the UK to visit her family and to spend some time in her home town. T said that she still had a business in Egypt and so would want to return on 21^st October 2013 but that she wanted to travel back to Liverpool for Christmas and the New Year; it was on this basis the Home Office granted Z entry clearance as a visitor from 1^st July 2013 until 1^st January 2014. At the same time T and K were granted permission by the Egyptian authorities to travel to the UK with Z between 1st July 2013 and 1st January 2014. In keeping with to the fostering rules in Egypt, the couple signed a document setting out when they would travel and confirming that they come back on the date specified.

T and Z flew to England and entered the UK on 1^st July 2013, unaccompanied by K. K travelled to visit them in August 2013 and again in December 2013. T and Z have remained in England since and they have not returned to Egypt at any time. T started full time work in the estate agency very shortly after she returned, on 15^th July 2013, in order to support herself and Z. As she was working T enrolled Z in a private nursery to provide her with child-care; Z now attends primary school in the same establishment, and is, by all accounts, very happy and doing well there.

It is T’s case that before leaving Egypt her business interests had suffered as a result of the political instability and civil unrest in the country, which worsened in 2010 and in 2011 with the revolution which brought to an end the Mubarak regime, and that, by the time they left in July 2013, she had very little way of making any income as her business was almost entirely dependent on tourists, fewer and fewer of whom were coming to Egypt. T described an increasingly dangerous situation in Luxor in the months prior to her departure with Z, and circumstances had forced her to move from the villa on the outskirts to an apartment in the town which was more secure. She described a shooting that had taken place near the villa which had resulted in people being left dead outside their home. In addition, T said that her marriage/relationship with K was being put under considerable strain as his first wife had been demanding money from her and had used threats involving going to the authorities in order to disrupt Z's placement, to ensure that payment was forthcoming.

It is T’s case that she did not bring Z to the UK with the intention either of remaining in the UK or of adopting Z; she intended to return to Egypt, had left what remained of her business there and hoped to start a new business on her return, and she that had understood adoption had already taken place in Egypt. The court is well aware that there was a coup d’état on 3^rd July 2013 and that the following insurgency lead to the reported deaths of hundreds of people in al-Nahda Square and Rabaa al-Adawiya Square in Cairo on or about 14^th August 2013. As at October 2016 all but essential travel to the airport at Sharm-el-Sheik is being advised against by the FCO; all travel to North Sinai was advised against and all but essential travel to South Sinai was advised against.

T said that it was not until she enquired about getting a British passport for Z, in or around late October 2013, that she had definitely decided that she did not wish to return to Egypt because to the unrest. As a result, about 5^th November 2013 T telephoned an adoption social worker at the local Adoption Service saying that she had returned from Egypt on 1^st July and that she had adopted a child in Egypt. She said that she had left Egypt as she feared that she and Z may come to some harm as a result of the civil political unrest. T said she wished to adopt Z in the UK. As the responsible local authority, LCC carried out an initial assessment on 19^th November 2013; it was very positive in terms of Z's needs being met and the strong attachment observed between Z and T. There is no dispute that T has provided a good standard of care for Z; or that Z and T have a secure and positive attachment to each other, or, indeed, that Z considers T to be her mother (she is aware that she is Egyptian and that T is not her biological mother).

On 20^th November 2013 K signed a document, addressed to whom it may concern, in it he set out that he gave his “full permission for my wife [T] to apply for a residence order and an adoption order for our adopted daughter [Z] ... [T] fully supports our daughter and if they should return to Egypt at this present time she has no possibility of employment and therefore cannot provide for herself and her daughter. I am unable at this present time to support them and I also have responsibility in supporting my three other children from my first marriage. I will be visiting [T] and [Z] at Christmas time [2014] and should any documents need signing I will be fully available”.

On 25^th November 2013 T issued an adoption application in the Family Court in Liverpool. On 18^th February 2014, on advice, T applied for a residence order, in the alternative. On 31^st December 2013, following the commencement of adoption proceedings, T applied on Z’s behalf for leave for her to remain in the UK. T said that her business in Egypt had collapsed before she returned to the UK and that she intended for her and Z to settle here. Z was granted leave to remain in the UK until 23^rd December 2017.

Once again, in a document dated 3^rd January 2014, K consented to an adoption order being made; he confirmed that he had received the adoption application and said “as I have written in my previous agreement that I give my full permission for our daughter [Z] to be adopted under UK Law”.

On the 26^th March 2014 the applications first came before me and I gave T permission to apply for an adoption order. It was recorded on the face of that order that the Court had jurisdiction to hear the case and to make orders pursuant to Article 13 of BIIa. Z was made a Ward of Court and care and control granted to T. Following the directions of the court the solicitor for the child proceeded to engage in a number of attempts to elicit information as to Z's history and legal status in Egypt in 2014; requests were made for information from the British Embassy in Egypt and from the UK Visa and Immigration authority; information concerning the applications was to be given to the Egyptian Embassy in London; and, an invitation was extended by the court for the Egyptian authority or the representative to attend court at the adjourned hearing. There was no response forthcoming at this stage.

The child’s guardian telephoned K in Egypt in May 2014 and it was at that stage, for the first time, he responded by email objecting to Z's adoption in the UK if it led to her being unable to return to Egypt. He said that she was a Muslim and an Egyptian and that her religion and nationality should not be changed under any circumstances. For the first time K said that he had understood that T’s application was designed only to enable Z to reside in the UK and to obtain additional benefits such as social security and a second, British, passport. In a later statement, submitted to the court on 16^th November 2014, K expressed his objection to the adoption application and said that the Department of Social Affairs in Luxor had requested that he register their objections, too. He explained that Z's position in Egyptian law must be respected otherwise he himself would face prosecution. He asked the Court to return Z to Egypt; at that stage he was not suggesting that he would care for her on her return.

On 17^th November 2014 the Al Uqsur Governorate, Social Solidarity Directorate, Social Affairs Sector, notified the parties (through the child's solicitor) by letter that it objected to T's application and that Z should be returned to Egypt as soon as possible. The parties sought advice on Egyptian law; initially a short opinion from a Mr Fathalla in October 2014 and later a more detailed opinion from an English barrister, Ian Edge, dated 25^th September 2015.

Mr Edge’s advice was that in Egyptian and Shari’a law there is no system of adoption which permits a child to become fully legally assimilated into another (non-biologically linked) family and that, indeed, adoption as the English courts understand it is prohibited. The placement with T and K was under a system of “kafala” or “fosterage” the legal status of which most closely resembles long term fostering in England & Wales. All major decisions in relation to an orphan throughout her minority are made by a local Foster Care Committee (FCC) including the decision of where and by whom she is fostered. Mr Edge commented that he was unaware of any other case where fosterage has been awarded to a foreigner. He advised that a contract between the FCC and the foster parents is drawn up which outlines what the FCC expects from the fostering couple; there are regular visits and 6-monthly reports as to the progress of the placement and depending on these reports changes to the terms, or the termination of, the foster placement may result.

Mr Edge advised that any Egyptian child would not normally be permitted to live permanently or to be fostered outside Egypt, though permission for holidays abroad may be given. He considered that a failure to return a child to Egypt following such a holiday would “be considered a serious breach of trust and of the fosterage agreement not to do so”. Mr Edge states that Egyptian courts would not recognise or enforce any court order made in England in any matter in which they considered that they themselves had jurisdiction: specifically, an Egyptian court will not recognise or enforce a foreign judgment if it does not comply with Egyptian public policy. Thus it followed that any adoption order made by this court would not be recognised in Egypt should Z return there during her lifetime.

In respect of Z’s legal status in Egyptian Law, it was Mr Edge’s advice that the FCC in Luxor continued to have authority to act under Egyptian law as her guardian. T and K would exercise such authority as was granted to them by the FCC, and such is normally to be exercised jointly. He said that not only would an adoption order in the UK not be recognised by Egypt but that it would be regarded as a serious breach of trust by the adopting parent. Any change of name or new nationality “could have serious repercussions in Egyptian law and would most likely lead to a loss of Egyptian nationality”. It was his opinion that neither a special guardianship order nor child arrangements order would be recognised in Egypt.

Following the application by T for an adoption order under the ACA 2002, LCC's Children’s Services undertook an assessment and filed a report on 23^rd July 2014; an Annexe A report on 13^th October 2014 and further amendments on 8^th May 2015. All three of the reports were most positive in respect of T’s commitment to, and care of, Z and commented on the “very strong attachment” between the little girl and T. According to the reports T is said to continue to keep Z aware of her racial origin and culture; “which is also addressed in her school”. From April 2015 the social worker was recommending adoption rather than special guardianship or a child arrangements order because in her professional opinion neither of the latter would “provide Z with the long term security she needs”.

Whatever the criticism there may be of these three reports, they have provided the court with a continuous, objective professional assessment of Z’s welfare in her current placement with T, as well as more social work oversight and involvement than there is in most adoption applications, this latter because the social worker concerned has remained allocated to this case and went on visiting and assessing Z’s welfare, T and her family and home throughout these proceedings. It has also meant that when there was a change in Z’s guardian not long before the final hearing took place, the effect of that change was greatly mitigated by the continuous oversight of the social worker, Ms Harding.

The case had been listed for final hearing on 26^th January 2016 with a time estimate of four days. It was recorded on the order dated 30^th September 2015 that the court considered “that there must be a resolution of these proceedings and the matter must proceed as a final hearing on that date”. The Court invited the Home Office, FCO & Egyptian Embassy to apply to intervene in the proceedings by 28^th October 2015, or in the alternative, to file a detailed response to the application.

On 26^th October 2015 the Consulate General of the Arab Republic of Egypt wrote to the Foreign Office, but not to the court, requesting that T return Z to Egypt. The letter noted that T had retained Z in the UK beyond the period for which permission had been granted by the Egyptian authorities and that adoption is not permitted by Egyptian law. Subsequent correspondence set out how Egyptian law has been broken by T and (and K) and that prosecution of both of them would follow. As a result, on 11^th November 2015, the timetable for the final hearing was changed to a final hearing in February 2016, this was to allow for all the relevant authorities to consider all the information they had received and to make any application they saw fit at a directions hearing on 25^th January 2016; notice was, again, given to the relevant authorities.

In November 2015, well over two years after T and Z had come to England, K issued a petition in Egypt for T to cease the litigation in England and to return Z to Egypt. In her report of December 2015 the LCC’s social worker, Ms Jan Harding, informed the court that T remained totally committed to Z and that Z was developing well in her care. It was the conclusion of the local authority an adoption order and to live in this country with T was what was in the best interests of Z’s welfare. Finally, in an application dated 17^th December 2015 the Egyptian Ministry for Social Solidarity sought to be joined as a party to the proceedings and a consent order was lodged with the Court.

I shall return to the position of each party in greater detail below, here I set out their positions in brief. T wishes to adopt Z. It is her case that Z is flourishing in her care and that it would be devastating for her to have to return to Egypt and to be placed with strangers, in this she would include the family of K. T does not wish to return to live in Egypt with Z, not least as she would have no means of supporting herself and Z and her relationship with K has ended. Although T no longer follows the Muslim faith herself she says that she is providing Z with exposure to Islam and actively maintains and develops an awareness in Z of her Egyptian culture and heritage. She considers that Z’s welfare needs now and in the future would be best met by Z remaining in the UK as her adopted daughter and as part of her wider family. She would like to give Z her family name.

In a statement filed on 9^th March 2016 Mr Youssef Abdel Basset, Under Secretary at the Ministry of Social Solidarity of the Arab Republic of Egypt, expressed the strong view of the Ministry that Z should be returned to her country of birth and that her retention in the UK is unlawful. He reiterated that various Egyptian laws and charters have been breached by T. The Egyptian authorities are opposed to Z’s adoption; not only is adoption not recognised in Egyptian law (and contravenes Shari’a) but the adoption of an Egyptian Muslim child by a non-Muslim puts at risk the retention of her faith, culture and heritage. It is their view that as such Z long-term emotional and psychological wellbeing is imperilled by her continuing to remain in this jurisdiction and she should be returned “home” to Egypt. Mr Basset states that if it is Z’s best interests for her to be cared for by T, she (T) could return to live in Egypt and care for Z there.

In a supplemental statement Mr Abdel Basset provides details of an alternative proposed placement for Z in Egypt with a foster family; however, when he arrived at court from Egypt, after the hearing had already commenced he instructed his counsel, Mr Henry Setright QC, to tell the court that the Ministry would primarily support the placement of Z with K and his family; something that had not been their position previously. Later when he gave oral evidence, Mr Abdel Basset appeared not to give placement with K such positive support and told the court about yet another family with whom Z could be placed. I shall return to the oral evidence in more detail later in this judgment.

It is submitted on behalf of the Ministry that the analysis of both the social worker (on behalf of LCC) and of the guardian is flawed and failed to consider all the options for the placement of Z, in particular the loss of her native language, culture, heritage and religion; in short, to use a somewhat inelegant phrase, it was not B-S (Footnote: ¹)compliant. I shall return to this below, but note from the outset that this submission would have had considerably more weight if the possible alternative placements had been known when the social worker and guardian were carrying out their investigations and had had the opportunity of assessing the placements put forward by Mr Abdel Basset immediately prior to the hearing and during the hearing itself. Mr Abdel Basset himself in his oral evidence appeared to accept there were deficits in the information about the alternative placements that he had placed before the court when he suggested that professionals from England should go to Egypt to carry out their own assessments.

It is, to some extent at least, disingenuous to complain that the evidence placed before the court on behalf of the local authority and by the guardian is incomplete, particularly when considered against the ostensible evidence presented about the possible placements in Egypt. There was, in turn, little if any analysis in the Ministry’s evidence of the long-term effects on Z of removal from the care of T; the marked emphasis being on the long-term effects of loss of culture, language, nationality and heritage; in this it lacked balance when viewed, as it must be in law, through the prism of the welfare checklist in section 1 of ACA 2002.

The present guardian, Jeff Smith, took over case responsibility from the previous guardian in March 2016. In his final analysis dated 16^th June 2016 he acknowledges there are complexities and sensitivities at large in the case, particularly in respect of Z’s heritage and national and cultural heritage as she grows older but concluded that it is in Z’s best interests for her to remain in the UK with T: at this stage in her life, and in welfare terms, he cannot see how Z’s interests can be served by a return to Egypt at all, but even in terms of her welfare throughout her life he concluded that Z’s welfare would be best served by her adoption and remaining the child of T for the rest of her life. His analysis, and that of the social worker, has been the subject of criticism on behalf of the Ministry, and of a lack of balance.

K wants Z to be returned to Egypt. It would seem that he thought she should return with T but if not she should be placed within his immediate family. K did not advance this case until well into the proceedings (in 2016) and, indeed, K had not taken part directly in any of the previous hearings. It was a matter of uncertainty that he would participate in the hearing in August and September 2016. Just prior to the hearing the court was given to understand that he would only give his evidence by video link from Egypt, and not take part otherwise. Provision was made for a video link so that he could give evidence from Egypt and an interpreter was provided by the court. It was not until after he had joined to proceeding to give his evidence that K then said it was his intention to continue to participate in the hearing. Unfortunately, but not unusually the IT available to the court and the video link was of such poor quality and signal that it proved impossible for K to give evidence by video. He gave evidence over the telephone and attempts were made to enable him to listen into the rest of the proceedings but as he was apparently moving about from place to place in Egypt and did not always have a reliable signal his participation was curtailed. He was provided with two court appointed interpreters who, K told me (he speaks a considerable amount of English) were acceptable, and, he told me that they understood each other.

In addition to the documentary evidence and statements filed by the parties and placed before the court in the trial bundles, and which I read, the court heard the oral evidence of T, of K by audio-link, of the social worker Ms Harding, of Mr Abdel Basset on behalf of the Ministry and lastly, of the child’s guardian.

The evidence of T and K. T described the first time that she saw Z in the “babies’ room” at the orphanage. She described the scene as “heart-breaking” and said that the babies were left lying there on the floor in unchanged nappies, in a hot room with no toys, little furniture and nothing on the walls. T said that Z had put out her arms to her and that she had picked the baby up. She described feeling a connection with Z immediately and from then on she felt affection and responsibility for the baby. T was visibly moved when recalling how Z had come into her life and her love and affection for the child was self-evident, then and throughout her evidence.

T told the court that she was concerned for Z’s welfare in the short, medium and long term if she were to be returned to Egypt without her, not only would she be affected emotionally and psychologically if removed from the person she understands to be her “mummy” and someone who has always cared for her as a parent, T voiced concerns about her longer term safety and security. T raised the question of female genital mutilation (FGM) and referred to the discrimination faced by orphans and foundlings in Egypt (this latter had also been raised by Mr Edge in his opinion).

From the outset of his evidence and participation in the proceedings, K was insistent that court recognised the fact that he is a lawyer with a position to maintain. K’s demeanour in giving evidence was not easy to assess; not least as it was given over the telephone the court was not able to see him. K appeared to be very impatient with the proceedings, or lacking in courtesy at best, and would frequently interrupt or talk over the interpreter, both in English and Arabic; however, the court understood the difficulties he had in participating in the hearing by phone on a connection that frequently cut out.

During his evidence he spoke of the professional difficulties he had already encountered because of this case, which he suggested could lead to him being disbarred if Z was not returned to Egypt. He was self-evidently, and understandably, concerned about the ramifications for him, legally, professionally and personally of Z possible adoption and of her not being returned to Egypt. It was made clear to this court that her adoption by T would not be considered lawful in Egypt and that illegality would extend to her retention in this country. K started his evidence by talking, at length, about a boat which he said had been owned by T, its current ownership and the financial dealings concerning the boat. This matter had been raised as an issue by T but it is not now, and never has been, the subject of these proceedings which are concerned with the welfare of Z and her long-term placement. The emphasis which K placed on this issue was because he wanted to prove both that the boat had changed hands legitimately and that T had been involved financial impropriety in Egypt, and, by extension and implication, no-one in Egypt including K himself had behaved improperly over the transfer of ownership of this property which had belonged to T. The boat, as I far as I could understand, had been purchased by a third party from whom I had and heard no evidence; the documentary proof on which K sought to rely, such as it was, was filed during and after the hearing (so it would not have been possible for T to challenge it) and I found the evidence to be inconclusive and as in the way it was presented to the court, certainly after the hearing concluded, improperly attested.

What was surprising and of concern to the court was that K chose to concentrate on this issue at the outset of his evidence rather than deal with his plans for Z, or seek to reassure the court about his proposals for Z if she were to be placed with him; he filed no evidence about where and how she would live in his home rather he made bald assertions about his family and how she would be welcomed into it. Z has, after all had little if any contact with most of the family and has not seen K himself (whatever the reasons) since December 2013. K has not had any indirect contact with her since 2015 when his relationship with T ended when he ceased to support the application for an adoption order after the Ministry made its opposition known to him, although this was many months before they sought to intervene in these proceedings. Since then K has made no attempt to keep in contact with Z.

I found T to be a credible witness who was calm and largely matter of fact in manner when she gave her oral evidence. There was no sign of defensiveness and she answered the questioned put without any apparent attempt to evade them, dissemble or avoid what was asked of her; this was in contrast to K who seldom answered the questions he was asked. T did show some emotion when talking about Z, which I find was appropriate and in keeping with the love and commitment that she has shown Z throughout. T was, however, adamant that as far as she was concerned she had adopted Z in Egypt; this apparent intransigence has to be viewed in the context of what T herself had been led to believe at the time Z was placed with her and subsequently.

While it was clear to the court, and accepted by all counsel, that as a matter of Egyptian Law Z was not, indeed could not have been, adopted by T and K, it remained the evidence of T that she considered that she had “adopted” Z in Egypt and that is why she told officials and this court, prior to and after she had entered the UK, that she had “adopted” Z, and that was an accurate and honest reflection of her state of mind and was not an act of deception. It is agreed by all parties, that as T told me, the arrangements for Z to be placed in their care were undertaken in Arabic by K. T does not speak or read Arabic (it is accepted that her business was conducted in English and that her clients were expatriates); nor does she read it, therefore she was entirely reliant on K to translate all documents and explain all the steps and procedures that were undertaken, not only as regards the placement but in all their other dealings where there were documents in Arabic.

T told me that K had always described Z placement as “adoption” and that he did not as he claimed in his evidence, explain to her throughout that it was foster-care. I pause here to refer to K’s oral evidence to the court during which he repeatedly used the word adoption; sometimes on its own and sometimes using it interchangeably with fostering. As an example, he told me that T had asked to “adopt” one of the children from the orphanage. In his written communication with the other parties and the court in English he often repeated the term, in seeming acquiescence of T’s evidence, and referred to Z as their daughter; K referred to Z as “our adopted daughter” and “fully supports our daughter” on 20^th November 2013; again, on 3^rd January 2014 he called Z “our adopted daughter” and said that T “cannot provide for herself or our daughter [in Egypt]”; not long after that he wrote “I give full permission for our daughter [Z] to be adopted under the UK Law”. Shortly afterwards, in early later 2014, K gave his consent again in the same terms; “I give my full permission for our daughter [Z] to be adopted under UK law.”

Although, in a document attached to email dated 16^th November 2014, K informed the court and was aware that Social Affairs Department had requested that he register their “full objection and refusal” to the adoption application he still sent an email to the then guardian and the solicitor for the child referring to himself and T as Z’s parents. Dated 17^th November 2014 K referred to the “quick return of the child to be bring up in Egypt under the supervision of her parents [K] and his wife [T] …”; and another dated 2^nd October 2015 made the unequivocal assertion that Z “has been adopted” and “is legally adopted” according to Egyptian law and that he was “the lawyer who start and finished the adoption process…”.

The reference to Z as their daughter (and never their foster-child) continued when K wrote to the Care Directorate in Egypt, explaining Z continued presence in England. K said that “…the girl is unable to return for the time being because of her mother’s fear of the security…” and that “… she [Z] currently resides with her mother…”. He repeatedly referred to T as “… replacement mother of the daughter…”

The impression that T gained was that Z was placed with them in a manner that was closer to adoption than anything else was given further support by the terms of the Egyptian documents she was shown (in translation); they used such terms as “…into [their] permanent custody…” (document dated 24^th April 2013); and “… with the full and permanent raising of [Z]…” (document dated 23^rd April 2013). Several times the documents repeated the phrase “… [Z] has been fully entrusted to …”; and referred to Z as having been placed in the “custody of the family…”. I find that the impression that T had, before she left Egypt, that Z had been placed permanently in their care and that they were to all intents and purposes her parents and in loco parentis was as a result of what she had been led to believe by K and by the documents she had seen; there is no evidence to support a contention that she was trying to deceive the court or the authorities when she referred to Z as having been adopted in Egypt.

T told me that when she arrived in the UK on 1^st July 2013 she had return tickets and had intended to return to Egypt after spending some time in her home town and with her family, when she had hoped that the situation in Egypt would have improved. There is little doubt, from her own evidence that, she was very concerned, if not frightened by the deteriorating security where she was living and that her business interests, and ability to support herself financially had be substantially compromised as a result (K had never supported her or Z as he accepted himself in his document of 20^th November 2013 referred to above). The accusation levelled at her for arranging for and taking a job on her return is ill-founded; far from providing proof that it was her intention to remain in England at the outset, I find that this job (which was temporary when she started it) is evidence of T’s determination to provide for herself and Z as she had always done. T has struck me as a person of some self-possession and admirable independence, who has supported herself since she was a very young woman and would be determined to continue to do so; it is not a matter which should attract criticism, on the contrary T is to be praised for her industry.

As to the situation in Egypt before she left, in her first statement to the court T said that three men “were shot dead outside our villa at my gate which was the final straw.” This had led to her moving to an apartment in town which offered greater security. K himself referred to the move that they had made in these terms “Our new address in Luxor which is Fayrouz neighborhood, next to the Security Directorate in Luxor, has clearly become one of the target places.” Nonetheless, and despite the deterioration in the situation, and the dwindling numbers of tourists on whom she depended to make her living, T continued to try to make a living by diversifying her interests; both she and K gave evidence about her attempts to set up an independent English medium school, which while it did not come to anything by the time T travelled to England, had provided the groundwork for a new business on her return.

On T’s arrival in the UK it is a matter of indisputable fact that the situation in Egypt deteriorated almost immediately; on 3^rd July 2013, following the coup d’état, the FCO’s Press Release was that the [FCO] recommended against all but essential travel to the country except for resorts on the Red Sea in South Sinai (it now recommends only essential travel to South Sinai; evidence which undermines the Ministry’s assertions that the social situation has improved) and those resorts on the Egyptian mainland in Red Sea Governorate and although the FCO did not recommend immediate departure at the moment, British Nationals already in Egypt in areas where we advise against all but essential travel should consider whether they have a pressing need to remain. This advice was not relaxed until November 2014 and then only regionally; I have already referred to the current advice.

The political events and unrest in 2013 revealing a highly troubled State are a matter of public record and in is not necessary for me to rehearse them here but it is more likely than not that T was affected by them and that it would have been unrealistic to suppose that she and the child would return to a secure situation where she could re-build her businesses as she had hoped while there was an escalation of militant attacks in the Sinai Peninsula, continuing Civil unrest and instability in response to the coup d’état; and the temporary suspension of Egypt from the African Union.

T told the court that, prior to leaving Egypt, her relationship with K had been under increasing strain and that his wife had demanded money from her. T told me, and I accept this not least because it was not challenged by K, that she had financially supported K while he was living with her as she could afford it and it meant that K could support his three children. She told me that she believed K when she had married him and he told her he that had not only divorced he previous English wife, but that he was divorced from his Egyptian first wife and the mother of his children.

In his oral evidence K, on the other hand, said he remained married to his first wife that he had told T this at the time of their marriage. K, as he repeatedly reminded me, can read and write English. At the time of his marriage he apparently attested in English that he was not married when he underwent a civil ceremony with T; the court was shown a marriage certificate with parallel wording in English and Arabic to this effect. The fact that the court was told that Arabic version set out that K remained married to his first wife serves as proof that it is more likely than not that he was dishonest in his conduct when he married T and deliberately lied to her in word and in writing about the status of his marriage to his first, Egyptian wife. I find that he did so as he was well aware, as this court is aware, that T would not have married him at all if she had known that he remained married to another woman.

I accept the submission of Mr Baker, counsel for the local authority and Ms Frances Heaton QC, for T, that K was lying when he denied telling T that he had divorced the mother of his children. I do not find his evidence to be credible in this, and other matters. It is, I find, more likely than not that he had deliberately set out to deceive T. There is nothing in her evidence to suggest that she would have, ever, consented to marry K if she had known he was still married; such a step would have been antipathetic to the way she had conducted her life and I accept her evidence when she told me that she had sought reassurance from K that he was not married and that he gave it to her. The fact that she supported him so that he could support his children is evidence of the responsible way she conducted her affairs; as was her acceptance of his regular visits home which he explained to her as visiting his children. It is clear now that he was, in fact, as he said in his evidence returning home not only to see his children but to see and maintain his marital relationship with his Egyptian wife.

I have neither heard nor seen any evidence whatsoever from K’s wife. It would seem likely that she accepted his “marriage” to T as part of K’s business dealings and as a matter of financial expediency; if she had any choice at all. I accept T’s evidence that K’s wife phoned her to demand money from her and that she gave away her car to K’s wife and his family because of threats to undermine Z’s placement by complaining to the Egyptian authorities. There is no evidence from the Ministry that she has been interviewed or assessed or challenged about her past conduct in respect of T or as to her willingness to act as a foster parent for Z; a child whose placement she had previously threatened to disrupt on the evidence of T. Whether this allegation by T was accepted by the Ministry or not it directly concerned K’s first wife’s conduct in respect of Z and she should, at the very least, have been asked about it.

In contrast to T, K’s oral evidence, even allowing for the technical difficulties and deficiencies, was both evasive and dissembling. He frequently interrupted the interpretation of the questions as well as failing to answer the questions that were put to him. On many occasions, some of which I have already referred to K contradicted his previous written evidence particularly regarding whether he had used the term “adoption” when speaking to T and, in point of fact, he used the word frequently and continuously in his oral evidence in other contexts. It is a matter of written record that K was frequently dishonest when communicating with the Directorate: he claimed that T’s mother ill as one of the reasons for Z not returning to Egypt with T, and tried to maintain that fiction when giving evidence. Both the social worker and the guardian who have met T’s mother when visiting Z at home on numerous occasions were able to independently confirm that she did not suffer ill health.

The fact that K delayed for some considerable time before informing the Directorate of Social Affairs in Luxor of the truth, namely that T had applied for an adoption order and was did not intent to return to Egypt with Z could only have been to deliberately hide from them what was actually happening. It is more likely than not that he was attempting to avoid conflict with the Egyptian authorities and avoid any action being taken against him. In his oral evidence he was unable to explain why he had not told them of the court proceedings, although this was unsurprising given his obvious attempts to ensure that the evidence he gave was coincided with the views expressed by the Ministry.

Thus I found K’s evidence about the status of orphans being treated in the same way as anyone-else in Egypt to be, as Mr Baker described it, disingenuous. Even Mr Abdel Basset accepted that the discrimination against orphans and foundlings was still prevalent, although improved; he described their situation as “far from rosy”. T told the court that she had observed that the children from the Sunshine Orphanage were treated as objects of derision, and on one occasion she had experienced children having been admonished by their mother for showing an interest and starting to play with Z; I accept her evidence in respect of her own observations while living in Egypt. This matter, which was raised by Mr Edge in his advice on Egyptian Law was, quite understandably, disputed on behalf the Ministry and I was told, and I accept, that such behaviour was not condoned and that concerted efforts have been made to greatly reduce if not eliminate discrimination; however, these assertions made by Mr Abdel Basset, which I am sure were genuinely held, were just that, assertions, and do not amount to evidence that discrimination does not exist, any more than his assurances about the elimination of FGM. If children of unknown parentage are suffering discrimination socially and personally in Egyptian society this would militate against Z long term future being better provided for by her return.

I accept T’s evidence as to her reasons for leaving Egypt when she did as being the political and social instability, her own economic difficulties and the actions of K’s wife. Given that the political and social situation worsened in 2013 along with the continued collapse in tourism, which directly affected T’s ability to support Z and herself, along with her estrangement from K it is quite understandable that she did not wish to return to Egypt to live there. As time went on, she had little if anything to return to; she no longer owned her boat, her husband “returned” to his wife and the situation in Egypt remained volatile. From her stand point she had no reason to return for she understood that she had (and the documents confirmed) full and permanent custody of Z. The signature on the agreement with the authorities in Luxor to return with Z by a specified date is not that of T; despite K’s repeatedly assertions that he had authority to sign on her behalf, there is no evidence over and above those assertions that he had any such authority and his willingness to sign “on her behalf” is further evidence of his duplicitous behaviour such as he exhibited when lying to the authorities in Egypt about Z remaining in England, while hiding the fact of the court proceedings from them.

On behalf of the Ministry, it was put to T in evidence that she had a long history of miscarriages and that her desire to have children led her to plan a deceitful method of obtaining one, which include marrying K in for the purpose of obtaining the placement of Z with her, and of further deceptionin supplying the UKBA (as it then was) false information and contriving, in short, an entire, convoluted sequence of events in a scheme to obtain a child. T answered some distasteful, intrusive and maladroit questions about her medical history and personal circumstances without demurral and with dignity and forbearance. There was no objective evidence to substantiate this version of the case, I have no reason to doubt that T, in offering and providing a home for Z, was motivated by her concern and affection for the child, and nothing else.

Throughout these proceedings, which have gone on for almost 3 years, T has, at all times cooperated fully with the court and with the authorities. I accept the submission made on behalf of T and supported by the local authority that her commitment to the proceedings, which have been lengthy (and very expensive for her personally) has been beyond question and is a concrete manifestation of her devotion to Z. T has not, at any time, sought to hide from the authorities or the court how Z came into her care and she certainly did not delay in making her application regarding Z’s placement with her in the UK. Any delay in concluding these applications has not been as a consequence of any action or inaction on her part. Although it is inevitable that her case will benefit because of the length of time Z has now been in her care, that has not been because of action taken by T and as such any submission relying on case law where that was the case, such as where applicants for adoption orders have hidden a child over long periods of time to strengthen their case, can have little if any weight or application.

Whatever the argument about the overall analysis contained in the assessments undertaken by this very experienced adoption social worker and Z’s guardian their evidence and opinion about Z’s current situation is not open to challenge by any evidence to the contrary. Their evidence that the care provided to Z by T is of a very high standard and Z is clearly a happy, secure, thriving and much-loved child. T’s love and commitment to Z has never been in doubt throughout these proceedings and was conspicuous in her oral evidence; her devotion was palpable in the way she spoke about Z. In contrast, whilst allowing for the distancing effect of the telephone and the need for an interpreter, there was marked absence of any evidence from K which betrayed any reflection on the effects on Z of her removal from T or the effects on her on being placed amongst strangers in a strange (to her) land; nor did he manage to convey any affectionate feeling for her. K has never supported Z financially in the past, and he has not sent her any gifts or cards or anything else at all while she has been in England. He has not spoken to her for over a year and has made no attempt to do so. K has never made a formal application for contact, nor has he informally broached the subject of contact with the guardians, both of whom have been in touch with him during the proceedings. He has, in fact shown little or no interest in Z since he last saw her when he visited in December 2014. In contrast T’s commitment to Z has been unwavering and has been at her own personal and financial cost.

The child herself is observed to be securely attached to T who is her psychological mother and, without doubt, her emotional mother; this relationship is hugely significant to Z. To put it plainly Z loves and is loved by T and they have all the outward signs of a secure and mutually beneficial relationship. If asked, I have no doubt at all that Z would say that she wanted to remain with Z, who she regards as her mother. T’s mother is as a grandmother to her and the extended family have welcomed Z, accepted her and taken her to their hearts.

The criticisms of T’s care which form the basis of the Ministry’s case are twofold and relate to the promotion of Z’s cultural, religious, her heritage and language and, secondly, her loss of contact with K. To deal with the second first; when Z came to England there was a substantial change in her life in the absence of K, who had been living with T and treating Z as their child. The extent of the role he played in Z’s life when in Egypt is difficult to assess as his claim that he was almost constant presence in the household is at odds with his concurrent claim that he had a continuous and active marriage to his Egyptian wife and had always been actively involved with his first wife and children. I do not accept that he played a significant role as a primary carer. His direct involvement with Z initially diminished in 2013 and then effectively came to an end in 2015. This must have had a reductive effect on Z’s awareness of direct cultural influence as well as a significant loss of her psychological father; however, much of the responsibility for this must be K’s as he did nothing to maintain the link with Z, either as a father-figure or as a conduit for, or connection with, her Egyptian Arabic heritage. This lack of commitment on K’s part raises serious questions about his motivation for seeking Z’s placement with him now.

It is a fact that K did not make an application to the court for Z to be placed with him. It was not until late November 2015 that he expressed any such intention which that was in a document that he said was attached to an email to the child’s solicitor or guardian. This document did not, apparently, resurface until the summer of 2016, shortly before the hearing, although the guardian said he was aware of it after he took over the case, he was not able to tell me when he first saw it. I am unsure that this document lay dormant for over six months as the solicitors file does not confirm whether or not it was forwarded to the other parties or not; certainly there is no evidence that it was passed on to Ms Harding so that she could consider it as an option. Be that as it may, K himself took no steps to inform the local authority or the court of his intention to put himself forward as a carer for Z and such inaction on his part betrays a lack of commitment to Z and nothing by way of indication that he was seriously pursuing any placement with him.

In his oral evidence he told me that he had first approached the authorities in Egypt to be considered as a carer for Z in June or July of 2016. This would concur with the evidence of the Ministry. They, in turn, did not inform the court of their support of placement with K until after the hearing had got underway and Mr Abel Basset told me that the placement was only approved the Sunday prior to the trial commencing. The evidence is that K did not pursue the placement of Z with him and his family even in Egypt until just before these proceedings came to court in August 2016; this highly suggestive of expediency on his part, doubtless to mitigate against further difficulties for himself which might arise as a result of breaches of Egyptian law. I wholly reject the submission on behalf of the Ministry that K should be considered by the court to be a “victim of inadequate social work” on the part of the local authority.

As to the first of the criticisms of T set out above, as counsel for the local authority conceded, on a macro level there is can be little by way of a substantive answer to this criticism, which forms the backbone of the case advanced on behalf of the Ministry. There is no denying that once Z left Egypt she was removed from the country of her birth with all that must entail; she has been removed the daily influences that she would have had growing up in Egypt and there is there is nothing that can be done to replicate those influences which could only be restored by a return to living in Egypt. I acknowledge this as I do that the country she has been living in is inherently and intrinsically different in many ways to the country of her birth. Some of those differences are profound and exemplified by matters that fell to be considered during this hearing. The most elemental being that legal, societal and cultural, ethical and moral norms are rooted to much greater extent in religious context in Egypt than in the UK an example of which is that polygamy is permissible in Egypt and a criminal offence in the UK (bigamy).

The continued existence of orphanages and the number of children found abandoned in Egypt is no longer a feature of UK society; as is the absence of court-regulated, statutory, long-term state-provision of care options for care for orphans/foundlings. As can be seen from the work of UNICEF and NGOs in Egypt, FGM, whilst illegal since 2008, is still prevalent in Egypt. The 2015 Egyptian Health Issues Survey (Footnote: ²) conducted by the Egyptian Ministry of Health and Population in conjunction and in partnership with UNICEF and several other agencies found that 9 out of 10 women and girls between the ages of 15 and 49 had undergone FGM. It is not possible for this court to ignore the likelihood of Z undergoing FGM should she return to Egypt; particularly when in September of 2016 an Egyptian MP (Footnote: ³) was still calling for all women to be mutilated despite it being illegal.

Thus whilst it has been agreed by all parties that decisions the court will make about Z must be made on the welfare grounds, the social, legal and cultural perspectives from which that welfare is viewed are, in reality, quite different. This is illustrated, for example by the Egyptian legal stipulation that T must on her return to Egypt with Z have an Egyptian Muslim husband in order for Z to remain placed with her; but this is without any consideration of how K would divide his time as between his two wives and families as it is a “private matter” or of the actual likelihood of T accepting such an arrangement, or, indeed, of the effect of all this on both families. The different views in the importance to the child of micro management of her welfare, as opposed to the macro view of a child’s welfare in terms of her nationality and heritage, sets apart some of the considerations that are advanced in the cases of the local authority, the guardian and T on the one hand and the Ministry on the other.

This is further illustrated when it comes to the possibility that Z should have some choice when it comes to religious observance as the concept of choice with regard to religious belief is another significant difference. The religion of Z’s parents is as unknown as is their identity. She may be the child of Copts or of a sect of Islam not widely adhered to in Egypt; her parents may have had different religious beliefs. There is a significant possibility that Z was not born to Muslim parents given the Coptic population in the area in which she was found; the head of the Sunshine Orphanage at the time was a Copt. All orphans are assigned their religion by the state and the possibility of making a choice later in life is not contemplated or an accepted practice, whereas freedom of religious expression is considered a fundamental human right in many parts of the world including the UK. It is not for this court to make decisions based on some concept of cultural or legal superiority; and I do not do so, however the UNCRC has been ratified by the Egyptian State and I can and I do, properly use that as part of my consideration in due course.

It is a reality that part of the consequences of this child being adopted by T will inevitably mean there is no possibility of those larger factors in respect of Egyptian heritage and culture being fully restored. The court accepts that this is a significant loss and a matter that I must consider pursuant to s 1(4) (d) and weigh in the balance. I can, and I do, take into account that this loss was one which the Egyptian authorities seemingly permitted to persist for some considerable time as there were repeated attempts by the court to engage the Egyptian Government in the proceedings through the Embassy/Consulate in London. The Ministry accepts that the first letter was received by the Consulate on 10^th November 2014 but they did not seek party status until 17^th December 2015. I am informed by counsel that this is because the Ministry was not properly informed of the existence of these proceedings until late 2015 when the Consulate in London became “properly involved”. I shall return to this in more detail, below but while the court is pleased to be able to make clear that the preferred point of contact is through the Egyptian Consulate in London it is not accepted that the Egyptian authorities could or should not have chosen to become involved shortly after the first contact in November 2014.

To return to the case, and Z’s welfare, the only identifiable present or future harm in respect of the welfare checklist set out in s1(4) (c) and (d) (as amended) are in respect of her background, which would include her nationality, the separation from her country of birth and her cultural and religious heritage. As amended, under s 1(5) in placing a child for adoption an adoption agency in Wales (but not in England) must give due consideration to the child’s religious persuasion, racial origin and cultural and linguistic background. The case is being considered in England and not in Wales, but, even before the amendment to the ACA it was established law that a parent’s religious beliefs were never considered determinative when considering the totality of a child’s welfare; a parent’s rights under Art 9 of the ECHR 1950 (which applies in this case) are qualified by the child’s right to a family life under Art 8: Re S; Newcastle County Council v Z [2007] 1 FLR 861. As it is the court has no knowledge of what the religion her parents might have practiced, while accepting that the Ministry considers that she must be treated a Muslim child. The law does not provide for me to give particular and preferential consideration to Z’s religious persuasion, racial origin and cultural and linguistic background.

I keep in mind, however, that the Egyptian authorities entrusted Z to the “full custody” of T and K when they were aware, or should have been aware that K had two families as he was married to another woman with whom he had children, and that T was a British citizen who did not speak Arabic. The evidence before this court (which was not disputed) was that even when in Egypt Z was spoken to in English by both T and K with occasional use of Arabic words. As an infant she was not instructed in the Muslim faith and had not had any specific religious instruction. The Directorate’s own report from their social worker who visited the child acknowledged that T (as the mother) was the main carer. In many ways therefore the daily reality of Z’s life was little changed when she came to live in England with T.

The Social Worker’s evidence & local authority’s case. Ms Harding prepared more than one report and welfare assessment during the currency of this case. Overall I found her evidence to be thoughtful and thorough from the outset she did not dismiss or ignore the questions that arose concerning Z’s heritage and background. While it is true to say that she did not carry out an assessment of K and his family she was never in a position to do so; British social workers are quite simply not qualified or authorised to carry out assessments in overseas jurisdictions. In any event, K did not provide any details of his home, his family or of where and in what circumstances Z would make her home with his family on which the social worker could have based even a preliminary assessment. As to the assessment of the two other families suggested and put forward by the Ministry, it would be facile to suggest that she could have carried out an analysis of those possible placements; a good deal of the evidence about them was first adduced by Mr Abdel Basset in his oral evidence. In respect of Z welfare needs and how they were being met by T, and would be met in the longer-term, I have no difficulty in relying on her evidence and professional opinion which was objective and child-centred.

The immediate risk of harm to Z of a move to Egypt were set out comprehensively in Ms Harding’s report of 24th August 2016 and, in reality, remain unchallenged. The importance to a child of placement stability has, as Ms Harding alluded to, been widely researched, and the importance of developing secure attachments in early infancy have long been recognized as essential ingredients in normal child development; the local authority’s evidence made reference to Ainsworth et al. 1978; Bowlby, 1969; & Bentovim, 1991. It is accepted that instability in a child’s placement reduces the opportunity for children to develop permanent, secure attachments, may compound existing difficulties and reinforcement of insecure patterns of attachment; the effects of which are life-long. Thus children who are moved to different placements are less likely to attempt to establish intimate relationships with those who care for them and to display behaviour that keeps carers emotionally distant; this can, and does lead to placements breaking down and further rejection, from the point of view of the child.

The social worker reminded the court that the effects on an individual child who has experienced high levels of placement instability include poor adjustment in terms of employment, social relationships, financial management and housing (Biehal et al 1995). It was the evidence of Ms Harding that she had given careful consideration to placement instability within the wider context of Z’s past history and stability of the placement she has with T. It was the submission of the local authority, supported by Ms Harding in her evidence, that the quality of care provided by T, and along with their conclusion that there was a lack of deception on her part, led to the reasonable conclusion that Z remaining with T was “very likely to be a stable, life-long commitment”. The risks of foster care or fosterage in Egypt are greater in terms of instability and likely commitment.

In fact, I found that Mr Basset’s oral evidence was far more equivocal that the Ministry’s submissions regarding Z’s placement with K. The Ministry’s final stance that Z should be placed with K was not the thrust of Mr Basset’s oral evidence to me when he appeared to have three options or proposals for the care Z; T returns to Egypt and cares for Z there with K; secondly that Z is returned Egypt and to the care of K and his wife; and, thirdly that Z is placed with one of a number of foster families identified by the Ministry.

The submission that T return to Egypt and care for her at some unknown location is unsustainable. This is a view that was, to some extent at least, shared by Mr Basset, for when I asked him how T and Z would be financially supported if in Egypt he said that they could, perhaps, receive financial support from the British state. Although T, with some emotion and evident fear and trepidation, told me that if there was no other choice she would of course return with the Z to Egypt rather than abandon her, I agree with the submissions made on behalf of the other parties that this can only be viewed as testament to T’s commitment to the child rather than a realistic option. There are many reasons to reach the conclusion that this is not possible, from the Ministry’s view point the arrangement, if T were to return to Egypt with Z, would have to include the continuation of the marital relationship between T and K. This court would and could not countenance an order that was based on T having to accept and voluntarily subject herself to a polygamous marriage which would place her in an untenable, and to her repugnant, situation. Moreover, the evidence on which the Ministry had sought to rely failed to address any and all of the practicalities of this situation which they apparently favoured; there was no evidence of where T and Z would live; who would fund the move; where T would work (if she could) and how care was to be divided between T and K. This list is far from exhaustive.

The question of T’s personal, financial, social and emotional security which would impact directly on her ability to care for Z once in Egypt, and the fact that her status as the child's foster parent seems far from secure was barely touched upon by Mr Basset. It is of note that despite the fact that the Egyptian fosterage documents cited in this case referred to "full custody" and "permanent care" the written evidence of Mr Basset was that neither "foster parent" had parental responsibility (or any similar concept in Egyptian law) for Z and so the Egyptian State could at any point revoke T’s status and remove Z from her care. As such both Z and T would be living in a tenuous legal relationship, at best, which could be terminated at any time without recourse to legal proceedings; a situation which is precarious, uncertain and psychologically unsustainable. It is not one that provides for the short -term welfare of Z, never mind her life-long welfare.

Evidence of Mr Abdel Basset. I have already made reference to the written and oral evidence of Mr Abdel Basset who I found to be to be a courteous and careful witness. Indeed, his oral evidence was more measured than might have been indicated by his written evidence and, I find, he was concerned for the child herself. It was clear that the decision to support a placement with K and his family had been taken very shortly before the hearing; as was evident from the change in the Ministry’s instructions after the hearing had commenced. Understandably he was at pains to promote a view of Egyptian society which concurred with the stance and aims of the Ministry. I was, however, wholly unconvinced by his evidence regarding the prevalence of FGM, for example, which contradicts the 2015 findings of the Ministry of Health and Population and did not find assertions that possible foster-carers would not have Z “cut” because they were “well-educated” or “businessmen with a science background” convincing or reassuring; not least as there was no independent objective evidence before this court which provided the court with any proof of their qualifications, still less that this subject had been broached with the potential carers when their assessment took place.

Criticism was made of LCC that they had not assessed K, or properly considered alternative placements, while I do not accept such criticism to be well-founded, it was instructive to note that Mr Basset himself accepted that it was “not logical, not possible that we assess a person outside the country.” He said this when accepting that no-one from the Ministry had assessed Z, the child at the centre of their case; there has been no consideration or analysis of the child’s current situation and the effects on her of an enforced move to Egypt with or without T. He accepted that no-one from the Ministry had spoken to, or attempted to contact, the social worker in England. Nor had the Ministry contacted or spoken to Z’s court appointed guardian. Mr Basset was he said aware that the guardian had assessed Z.

Much was made in the Ministry’s case of the need for Z to speak Arabic. The fact is that her first language was English; both K and T spoke to her in English from babyhood. T does not speak Arabic and conducted her business, in Egypt, in English. K’s evidence supported this; it has always been his case that he helped T in translation and that he explained everything to her in English. Despite this Mr Basset insisted in his oral evidence that Z spoke Arabic and did not accept, when it was put to him that Z, had never spoken Arabic. Similarly, he refused to accept that Z had moved out of the orphanage to live with T and K before her first birthday, as it was he said “not possible under Egyptian Law”. The evidence of T and K is that Z had been living with them for well over a year when the placement was officially recognised, other than at local level, in Spring 2013. This seemingly stubborn refusal to accept evidence of matters being other than they should be betrayed Mr Basset’s determination to present the case as it fits with the Ministry’s perspective.

Even when questioned further about Z living with T and K unofficially well before 2013 and when it was pointed out in terms that this was the evidence of K, whose case the Ministry supported, as well as T, Mr Basset responded “living with them did not happen.” This intractability in his oral evidence carried through to the evidence about the status and treatment of orphans or foundlings in Egyptian society; however, he was less obdurate and conceded that “There is some problem…steps have been taken to improve the situation. There is a problem but measurements have been taken to improve…”

At points during his oral evidence Mr Basset apparently favoured Z returning to Egypt with T, and that he did so is testament to his concern for Z herself and the effect on her of being removed from the person she herself considers to be her “mummy”. From the point of view of the Ministry this would have to be with the concomitant resumption of the married relationship with K; it would, he explained be up to K how he divided his time between the two families. In cross-examination by Mr Rowley QC he was asked about the meeting which took place on the 8^th August 2016, and said that “a decision has not been made. I prefer that she be with [K] – it was me who said that not the meeting…” Mr Basset then went on to say “I prefer that the court send a specialist to decide… can be followed up and agreed if not with [K] then with the other families…”He was asked about the reaction of K’s children to the placement, as there was no mention of them in the documents he had presented to the court, other than to say that they knew Z and that one had visited her in England, Mr Basset was unable to assist the court with any further information about how they might welcome, or reject Z, feel about her becoming part of their family or manage her distress at being removed from (what she considers to be) her home and mother.

Nor had there been any consideration or analysis by Mr Basset, his colleagues or his subordinates, about managing the linguistic difficulties Z would encounter as she does not speak Arabic. This would be a considerable hurdle for Z to overcome, at least initially and would, as a matter of fact, add to the feelings of isolation that she would feel if placed amongst strangers in a strange land. She is a very little girl and larger socio-political concepts such as nationality and heritage would not provide her with the reassurance and feeling of security necessary for a child of her age. I was left with the strong impression that it was the principle and not the child that Mr Basset and the Ministry were focussed on and, as such, their analysis lacked balance.

Guardians’ evidence. Jeff Smith acted has acted as Z’s guardian since he took over in April 2016. He had not been able to speak to the previous guardian because of illness; but as a result of the work already done by Cafcass and the local authority he did not have to carry out much in the way of further investigation of Z’s welfare and, as he explained he did not want to cause the child anxiety by undertaking unnecessary visits. Mr Smith did not want to impose visits on the child of longer than 10 to 15 minutes, Z had already spent considerable time with the social worker, who had, as a result of the protracted proceedings spent an unusual amount of time with the child, and with her previous guardian. As a result, his overall knowledge and grasp of the details of the case were not as comprehensive as those who had been involved from the outset. He was, though, quite clear that moving Z from her placement with T would cause her harm, and pointed out that Z had been with T since she was 10 months old and had now been living in the UK for three years. It was his view, based on over thirty years’ experience as a guardian, that as moving a child very often caused harm and it was very likely that it would in this case; leading Z to feel resentful and guilty and to blame herself for the move; the long term effects would, he said, include lack of self-esteem, behavioural and other emotional difficulties, which would stretch beyond childhood.

Focussing on Z herself Mr Smith questioned how the move could be effectively managed for her for she would not want to go and would have difficulty in understanding why she had to leave her home; moreover, no-one could say to her that she was being badly looked after, as the evidence and the child’s own experience was dissentient. If there are no apparent and conspicuous reasons for a move that would make it worse for the child to deal with an as she would have to come to terms with what to her would be an incomprehensible move. T would, he said, and I agree, have extreme difficulty in manging what would have to be conveyed to Z as the reasons for her move. As her guardian Mr Smith had properly concerned himself with questions regarding the importance to Z of her heritage and background, both as a child and into adulthood. He felt that the “elements of race, culture, religion and nationality would be covered if she moved to Egypt [but in respect of] her faith and nationality steps were being taken. She will be provided with access to the faith, and the benefits of The Muslim faith.” In terms of her nationality she knows and has been introduced to where she is from and knows she had a person who cared for her who is Egyptian (in the person of K). He considered that the pictures and books she has about Egypt are age-appropriate and that Z had told him she was Egyptian, as he put it “off the cuff”.

Mr Smith said this was “an unusual case” even so his view that Z’s welfare is paramount is a correct statement of the law. In his oral evidence he reiterated that Z was a child who is happy, settled, bright and healthy; and that she had very positive reports from the head-teacher of her school, who could not have praised her more. In his view Z regarded T as her mother and with her support Z has dealt with some of her past, but that professional help with her life-story work would be needed to explain to her the fact of her abandonment and her move to living with T. There were, he said, no indication that T had dealt with Z’s background inappropriately or that she would in the future; Z was getting to know her background in an age appropriate way.

From Z point of view (her wishes and feelings) Mr Smith said there was every indication that Z would want to remain with T and to continue to live with her. Z had her major and most significant attachment with T which, he felt, had probably begun when T first visited her regularly in the orphanage, and had continued since then without a break. The formation of such a relationship was critical to her ability to form secure relationships now and into adulthood, and to her self-image, self-esteem and confident ability to develop throughout her life. Bluntly he repeated that he did not know how one would explain to Z a move away from T to Egypt as there was no welfare reason for such a move; he did not know how she would understand it. Z would suffer harm as a result and that all the indications were that it would be long term harm.

It was put to Mr Smith that he had restricted himself to considering the placement available in this country and that his analysis as set out in his report was flawed, but, this is a flimsy criticism as none of the alternative families put forward by the Ministry were known to Mr Smith when he prepared his report and it was filed just before the hearing took place; indeed, he too was unaware of one of the families until Mr Basset gave his oral evidence. Nonetheless, Mr Smith accepted that he had not set out a consideration of a placement with K. It is the court’s view that any such analysis would have been severely limited and restricted by the paucity of information available about K’s suggestion, which was not even taken up by the Ministry itself until after the trial commenced. It was suggested on behalf of the Ministry that the courts frequently move children who are more than adequately cared for if it is in their best interests to do so. This may well be the case when children are moved from short-term foster care to a permanent placement; but it misses the point, all the alternative placements put forward on behalf of the Ministry are permanent only in the sense that the child would be permanently returned to Egypt. None of them offer the personal security of remaining part of any family for the whole of this child’s life. I shall return to this later.

The UN Convention on the Rights of the Child. The United Nations Convention on the Rights of the Child (UNCRC) was ratified by the state of Egypt in 1990 which was the same year as it was ratified by the United Kingdom of Great Britain and Northern Ireland. There are no relevant bilateral agreements entered into as between the UK and Egypt as regards child abduction or adoption. Unlike under the Child Law in Egypt the UNCRC has not been the subject of an enabling Act of Parliament, nonetheless the principle is that, even where a binding international convention is not the subject of legislation, the courts will seek to interpret legislation consistently with unincorporated binding conventions has been applied by the House of Lords and the Supreme Court to the UNCRC. In Smith v Secretary of State for Work and Pensions [2006] UKHL 35 at [78] (a case concerning the child support regulations) Baroness Hale observed that the European Court of Human Rights looks to other international human rights instruments when interpreting the E C HR, and said that: “even if an international treaty has not been incorporated into domestic law our domestic legislation has to be construed as far as possible so as to comply with the international obligations we have undertaken. When two interpretations of [regulations] are possible, the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made in ratifying the United Nations Convention on the Rights of the Child."

In Re D (A Child) (Abduction: Custody Rights) [2006] 206 UKHL 51 the House of Lords held that the provisions of Art 11(2) of the Brussels II R Regulation, that a child is given the opportunity to be heard during proceedings is “of universal application and consistent with our international obligations under Art 12 of the United Nations Convention on the Rights of the Child”. In R (E) v Office of the Schools Adjudicator [2009] UKSC 15, Lord Mance made specific reference to Art 3 of the UNCRC, “under Art 3 of the United Nations Convention on the Rights of the Child 1989 it is the best interests of the child which the United Kingdom is obliged to treat as a primary consideration”; and in ZH v (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4, the Supreme Court relied on the terms of Art 3(1) of the UNCRC when considering the question of the weight that should be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from the United Kingdom; per Baroness Hale “For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3(1) of the UNCRC

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

The Supreme Court relied on the UNCRC for support for the proposition that, in relation to adoption, the child’s best interest should be paramount and in In Re B (Care Proceedings: Appeal) (Footnote: ⁴) the Supreme Court relied substantially on the provisions of the UNCRC in articulating the need for adoption orders to be orders of last resort where “nothing else will do”, Lord Neuberger PSC stating in terms that the Adoption and Children Act 2002 must be construed and applied bearing in mind the provisions of the UNCRC. In this case the primary legislation is compatible with Art 3. Art 8 sets out the rights of children to identity, nationality, name and family relations; also contained in ECHR Art 8; s1(4) ACA 2002; s1(5) ACA 2002.

Article 20 (3) deals with alternative care to a child’s family which could include, inter alia, foster placement, kafala of Islamic law, adoption or if necessary placement in suitable institutions for the care of children. Under UNCRC when considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background (as is set out in s1 CA1989 and s1 of the ACA 2002). In the context of Article 20, that the UN Guidance for Alternative Care of Children (A/RES/64/142 at para 60) provides: “Frequent changes in care setting are detrimental to the child’s development and ability to form attachments, and should be avoided.”

Article 21(a) provides that adoption can take place if in best interest only by competent authorities (such as this court) who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent (ss1, 52 ACA 2002). Article 21(b) recognizes that inter-country adoption may be considered as an alternative means of a child's care, if the child cannot be placed in a foster or an adoptive family or cannot in any suitable manner be cared for in the child's country of origin (ss1 and s 83 ACA 2002). Article 19 concerns the protection from physical or mental violence, abuse which would include FGM.

All of these factors are set out in the guidance given by the President and endorsed by the Supreme Court in Re N [2016] UKSC 15 at paragraph 61:

“The guidance given by the President in this case (paras 104 to 111) is relevant. He emphasised the importance in the checklist of factors to be considered when deciding whether to make an adoption order in section 1(4) of the 2002 Act, “(c) 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” and “(d) the child’s ... background” (para 104). The court and the professionals “must give the most careful consideration ... to those parts of the checklist which focus attention, explicitly or implicitly, on the child’s national, cultural, linguistic, ethnic and religious background”. The court is directed to consider the likely effect, throughout her life, of having ceased to be a member of her original family (para 105). As he had said in Merton London Borough Council v B [2015] EWCA Civ 888; [2016] 2 WLR 410, para 84, “We must be understanding of the concerns about our processes voiced by European colleagues;” and “the court ... must rigorously apply the principle that [non-consensual] adoption is ‘the last resort’ and only permissible ‘if nothing else will do’” (para 106). On the other hand, as he had said in In re J (Care Proceeding: Appeal) [2014] EWFC 4; [2015] 1 FLR 850, para 36, at the end of the day matters had to be judged “according to the law of England and by reference to the standards of reasonable men and women in contemporary English society. The parents’ views, whether religious, cultural, secular or social, are entitled to respect but cannot be determinative” (para 108). One important factor, in considering the child’s welfare, is whether an adoption order would be recognised in the country where the child is domiciled, or a national, or has been habitually resident. If it would not be, the court will have to consider the disadvantages of a “limping” adoption order (see In re B(S) (An Infant) [1968] Ch 204), which might make it difficult for them ever to visit Hungary. This might tell in favour of finding other ways of giving the children the security and stability they need.”

The Law of England and Wales: Adoption Keeping in mind, as I do, the UNCRC as set out above it is the law of England and Wales which I must apply; the ACA 2002 is the relevant statute in an adoption application; s1 of the ACA sets out the “considerations applying to the exercise of powers”; which applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child. They are as follows

“(2)

The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life.

(3)

The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child’s welfare.

(4)

The court or adoption agency must have regard to the following matters (among others)—

(a)

the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b)

the child’s particular needs,

(c)

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,

(d)

the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e)

any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

(f)

the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—

(i)

the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)

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,

(iii)

the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.

(5)

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.

(6)

The court or adoption agency 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.

(7)

In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—

(a)

coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b)

coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances.”

It is clear that the relationship that Z has, and has had, with K must be taken into account under s1(4) (f) by virtue of sub-section (8) and their right to a family life under Art 8 of the ECHR by virtue of the Human Rights Act 1998. By s 46 (2) making an adoption order legally extinguishes the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order. In English and Welsh law, at least, an adoption order in favour of T would extinguish the rights and responsibilities of the Egyptian authorities as custodians of Z. Subsection (5) which provides that an adoption order may be made even if the child to be adopted is already an adopted child is not relevant as Z is not an adopted child under Egyptian law; but (6) does and before making an adoption order, I must consider whether there should be arrangements for allowing any person contact with the child and consider any existing or proposed arrangements and obtain any views of the parties to the proceedings. Whatever order is made the court would encourage K to take active steps to maintain a relationship with Z.

Section 47 sets out the conditions for making adoption orders which may not be made if the child has a parent or guardian unless one of three conditions is met (but this section is subject to the provisions of section 52 regarding consent). The first condition is that, in the case of each parent or guardian of the child, the court is satisfied (a) that the parent or guardian consents to the making of the adoption order, (b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c) that the parent’s or guardian’s consent should be dispensed with: Z has no parents but, to some extent, it could be argued that the FCC (part of the Ministry) in Egypt has acted as her guardian and opposes the adoption order being made.

On behalf of Z, Mr Karl Rowley accepted that the Ministry has functioned in a way that is recognisable, in a general sense, as a guardian for Z and reminded me that some pre-2002 ACA cases recognised some foreign individuals or institutions as 'guardians' for a child in respect of whom an application for adoption had been made in England and Wales; giving as an example Re AGN (A Child) (Adoption: Foreign Guardianship) [2000] 2 FLR 43. He refers to the judgment of Charles J in Re J (Adoption: Consent of Foreign Public Authority) [2002] 2 FLR 618 in which he decided that neither the Jordanian Minister of Social Development nor a Jordanian public authority were to be treated as guardians. Both cases were decided under the 1976 Adoption and Children Act which permitted a wider reading of guardian; the ACA 2002 by s144 (Footnote: ⁵) uses the narrower CA 1989 definition and does not, it is submitted by Mr Rowley, admit a broader interpretation which could require that the permission of the Ministry a precondition.

It would seem that Mr Setright agrees with this proposition in paragraph 82 of his closing submissions “When considering whether or not Z should be adopted, the court must consider whether it is necessary to dispense with any party’s consent and if so whether that consent should be dispensed with. The Ministry is the only party with any legal responsibility for Z. It is accepted that there are intricacies in the law in relation to what types of relationship are protected for this purpose, and that more recent developments (and particularly the approach that is now taken within the 2002 Act) may result in the conclusion being reached that the Ministry is not a ‘guardian’ for this purpose.”

In applying s144 definition of guardian is defined by s5 of the CA1989 (as interpreted by s105 CA) guardians (or special guardians) are appointed by the court or by a parent, guardian or special guardian in the event of her (or his) death (the latter two must be effected in writing, the former by order of the court). The court appointed guardian in this case was replaced by the current guardian with the court’s approval. A guardian may only be appointed in accordance with s 5 (Footnote: ⁶) and the Ministry was not so appointed. The Ministry is not Z’s guardian by virtue of s144 and the court is not required to dispense with the consent of the Ministry under s 52.

It may be questionable whether the submission made on behalf of the Ministry that it is “the only body with legal rights in relation to [Z]” within this jurisdiction is correct; presently the court is exercising its powers parens patriae under the inherent jurisdiction, however, as must be clear from the repeated orders made by the court to inform the Egyptian authorities, this court has and will take notice of the Ministry’s opposition to her adoption and give it due weight. I accept that in opposing the adoption, the Ministry was seeking to protect the interests of one of its nationals abroad, and that “it has a particular view about what is in [Z]’s best interests going forward.” This court has considered the opposition to the child’s adoption as submitted in their written submissions and developed over the course of the hearing. There is no reason based on current law, however, that I should disregard the Ministry’s opposition only if it is necessary to do so in the interests of Z. I must give paramountcy to her welfare and the latter submission is not congruent with that principle of English and Welsh Law.

By s49 (1) (b) an application for adoptionmay be made by one person, if it is made under section 50 or 51 and the applicant is domiciled in a part of the British Islands or has been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application. T’s domicile of origin is England and there is no evidence to suggest she had lost or changed her domicile. Z is a child under the age of 18 as stipulated by s49. There is no dispute as to T making the application under s51; I am not being asked to make any decision about the status of her Egyptian marriage and, if not eligible under s51(10 as an unmarried person, she would, in any event, be eligible under s 51(2) (b) as a separated spouse, living apart, whose separation is likely to be permanent.

As this is an application with a foreign element chapter 6 of the ACA 2002 applies. By virtue of s83 of the Act there are restrictions on British residents bringing children into the UK, however the jurisdiction of the court to make an adoption order if it is considered to be in Z’s best interests within the meaning of s1 is not in dispute. Whether T may have committed a criminal offence under s 83 and the criminal law is a matter for the prosecuting authorities and not for this court. As far as this application is concerned the parties agree, any failure to comply with the 2005 Regulations does not act as a bar to the making of an adoption order, however it is a relevant consideration as to whether or not to make the order sought as per Re X (A Child) [2008] EWHC 1324 (Fam). I have considered whether T set out to deceive the authorities above, I conclude that she did not.

I recognise that when considering whether or not to make an order for adoption, it is relevant to consider whether the adoption will be recognised abroad, and if it will not be what impact that will have on the child and the child’s ability to travel in the future and have had in mind from the outset Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112. For that reason, I asked counsel for the Ministry for their answer to some questions about Z. What would happen to her after the age of 18 were she to return to Egypt after being adopted in the UK? Whether there is any discretion for Z, if adopted and if she had obtained British citizenship by that or any other means, to retain her Egyptian nationality as a dual national; and, if there is discretion to assist Z in retaining her Egyptian nationality or otherwise in travelling to Egypt as an autonomous person in her own right as she grows up and reaches majority.

It is a matter of some regret that I read in their closing submissions that whilst there is a discretion to permit dual nationality the fact of Z’s adoption and acquisition of British nationality “would be communicated to the Minister for the Interior who, in accordance with the relevant law governing matters of nationality, would attest that she had acquired a further nationality through the adoption and without prior authorization. There is a discretion to grant dual nationality, however such a grant can only be made following an application that has been made by the child’s parent or Guardian. In this case, for the purposes of Egyptian law Z’s guardian is the Ministry, and the Ministry could not apply for Z to obtain a further nationality because to do so would be both unconstitutional and contrary to public policy, including because her further nationality would have been acquired pursuant to an adoption, which is contrary to Egyptian law. According to the nationality law, Z would then be stripped of her Egyptian nationality, and in due course her passport would expire and could not be renewed.”

The fact that I have been told that a decision has been taken that such discretion as there is will not be exercised to assist Z (albeit that it is not entirely consistent with their expressed aim of providing assistance to Z) is something that must I keep in mind as it would considerably curtail Z’s ability, throughout her life, to have direct access to her country of origin and her ethnic heritage. Part of the balance against this is the fact that she will not be without nationality and could travel widely throughout the world as a British citizen.

In their agreed document as to the applicable law all parties (with the exception of K) reminded the court of Re B (A Child) [2013] UKSC 33, [2013] 1 WLR 1911, and that all the members of the court were agreed that a care order with a plan for adoption could be made only where it was “necessary” to do so, in a situation where “nothing else would do”. In B-S (applying Re B) the Court of Appeal emphasised that when considering an application for an adoption order, a “global, holistic evaluation” was required. The decision making process was described in the following way: “The judicial task is to evaluate all the options, undertaking a global, holistic and (see Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):

The decisions to be taken for the Z are of such import and moment, concerning as they do the rest of her life and intrinsic matters of her identity on all levels, her legal status and her future. I have endeavoured to carry out a global, comprehensive and consummating balancing exercise of the options for Z throughout this judgement which is intended to be read as a whole; in this I have been assisted in considering what is meant by “holistic” as set out in Re F (A Child) (International Relocation Cases) [2015] EWCA Civ 882 by McFarlane LJ:

As this is a case of some sophistication and complexity, to borrow McFarlane LJ’s phrase, it requires that all relevant factors are part of the balance in considering all the options for Z in order to decide the option that best meets her welfare needs, throughout her life; it is her welfare that is my paramount concern and as such no aspect of her life, be it background, nationality, heritage culture or religion takes precedence over her welfare as a whole. The options before this court are that Z remains in England to be cared for T as her adopted child throughout her childhood and into womanhood; that Z remains with T in the UK under a Child Arrangements Order which will remain in place throughout her childhood; that Z returns to Egypt with T and is fostered by her (in conjunction with K) throughout her childhood; that Z returns to Egypt without T and is fostered K and his wife during her childhood; or, that she is fostered by one of a number of alternative families identified by Mr Basset.

While it is submitted to be the preferred option of the Ministry that she is fostered by K, as set out above, I did not find that to be the import of Mr Basset’s oral evidence; as set out above he was not dogmatic in pursuing that option, even suggesting that professionals travel to Egypt to assess the situation there for themselves. The thrust of his oral evidence to me was that his preferred option was that Z returned to Egypt with T and remains in her care; while T remains married to K. This is neither a realistic or likely proposition as T has no intention of returning to her “marriage” or to K, has no means of support and no accommodation in which she and Z can live.

In his judgment in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, Sir James Munby, P, described the provision of proper evidence, evaluating both the pros and cons of any given option for the child concerned, as “fundamental”; I have to say that the I do not consider that the court has been provided with “proper evidence” as to the placements in Egypt as propounded by the Ministry. Whatever their criticisms of Ms Harding’s social work analysis her assessment of Z’s placement with T was thorough and when placed beside the information provided by the Ministry in respect of the putative foster placements on Egypt, including K, the paucity of information about the provision for Z’s care is conspicuous by its absence.

To take just some example there is no detail of which school it is proposed that Z should attend in any of the proposed placements (again, including with K) or who would pay the school fees. There is no information as to who would provide help for Z to learn Arabic swiftly as she would have to if she is not to feel entirely isolated. There is no detail of who would be able to speak to her in English in the interim; to ameliorate her sense of estrangement, isolation and abandonment. There is no analysis or consideration of what help this child would need emotionally, immediately on her arrival in Egypt again whether she is placed with K or elsewhere. She has had no direct contact with K since December 2013, and has no indirect contact with him for over a year (nor, as already observed, has he attempted to contact her even by sending gifts or cards), she last saw his youngest child in August 2013, and has never met K’s first wife. It is not clear if she has met all three of his children. There is scant, if any, evidence about this woman, who would take the place of T, of her attitude towards Z nor any assessment of her ability to deal with a child who would not be able to speak Arabic, and is more likely than not to feel abandoned, unhappy and resentful.

This case does not involve the adoption of a child contrary to the wishes of a biological parent (as in Re B; B-S and other cases to which I was referred) but that does not obviate the need to carry out an appropriate balancing exercise in relation to of the options that are available. Nor is this a Hague Convention case and the principles applied in those cases where the return of a child by a parent who alleges wrongful removal or retention, which may find some parallels here, are not directly analogous. Reference to case law in such cases is illustrative and does not create precedents to be followed here. Moreover, there is no dispute between the parties that the principle of paramountcy does not apply in Hague cases as it applies here (as there are general policy considerations which are to be weighed against the interests of the child in each individual case). An analysis of the plethora of decided cases, at every level, while it may be interesting, is of limited assistance.

I do note that Mr Setright has made reference parts of the judgment of Baroness Hale in In re J (Footnote: ⁷)in both in his opening skeleton argument and in his closing submissions as of assistance to the court when considering the weight to be afforded to issues such as Z’s country or origin, nationality, culture, heritage, language and religion; in particular, to the following passages which I reproduce here;

“[32] The most one can say, in my view, is that the judge may find it convenient to start from the proposition that it is likely to be better for a child to return to his home country for any disputes about his future to be decided there. A case against his doing so has to be made. But the weight to be given to that proposition will vary enormously from case to case. What may be best for him in the long run may be different from what will be best for him in the short run. It should not be assumed, in this or any other case, that allowing a child to remain here while his future is decided here inevitably means that he will remain here for ever.

[33] One important variable, as indicated in In re L [1974] 1 WLR 250, is the degree of connection of the child with each country. This is not to apply what has become the technical concept of habitual residence, but to ask in a common sense way with which country the child has the closer connection. What is his "home" country? Factors such as his nationality, where he has lived for most of his life, his first language, his race or ethnicity, his religion, his culture, and his education so far will all come into this”.

In this case, in fact, Z’s first language was and remains English. Z’s race and ethnicity, Egyptian-Arabic, and Egyptian nationality are recognized by this court and their importance in the court’s determination has been demonstrated in the manner in which these proceedings have been conducted; they have been prolonged in order to ensure that the country of her birth could play a role in this case. In truth and fact Z’s religion, in the sense of her parent’s religion is not known, but the importance of Islam in the life of an Egyptian is recognised. All her education has taken place in England in a school which is attended by children of many ethnicities and religions, including those of the Muslim faith. That her background is Egyptian is not disputed; nor does any party, including T seek to ignore it or set it aside. In the wider sense Egypt is Z’s home country; but, as far as this child is concerned her home is with T, and it is in England where she has spent most of her life.

While the English courts have long recognized that there are differences in the approaches taken by courts of different countries to the welfare of children, in as much as those differences are relevant it is inappropriate to compare one jurisdiction to another; I do not do so, but this case has to be decided by the laws of this jurisdiction and I can apply no other. Later in her decision in In re J, Baroness Hale held as follows:

“[37] Like everything else, the extent to which it is relevant that the legal system of the other country is different from our own depends upon the facts of the particular case. It would be wrong to say that the future of every child who is within the jurisdiction of our courts should be decided according to a conception of child welfare which exactly corresponds to that which is current here. In a world which values difference, one culture is not inevitably to be preferred to another. Indeed, we do not have any fixed concept of what will be in the best interests of the individual child. Once upon a time it was assumed that all very young children should be cared for by their mothers, but that older boys might well be better off with their fathers. Nowadays we know that some fathers are very well able to provide everyday care for even their very young children and are quite prepared to prioritise their children's needs over the demands of their own careers. Once upon a time it was assumed that mothers who had committed the matrimonial offence of adultery were only fit to care for their children if the father agreed to this. Nowadays we recognise that a mother's misconduct is no more relevant than a father's: the question is always the impact it will have on the child's upbringing and wellbeing. Once upon a time, it may have been assumed that there was only one way of bringing up children. Nowadays we know that there are many routes to a healthy and well-adjusted adulthood. We are not so arrogant as to think that we know best.

“[38] Hence our law does not start from any a priori assumptions about what is best for any individual child. It looks at the child and weighs a number of factors in the balance, now set out in the well-known "check-list" in section 1(3) of the Children Act 1989; these include his own wishes and feelings, his physical, emotional and educational needs and the relative capacities of the adults around him to meet those needs, the effect of change, his own characteristics and background, including his ethnicity, culture and religion, and any harm he has suffered or risks suffering in the future. There is nothing in those principles which prevents a court from giving great weight to the culture in which a child has been brought up when deciding how and where he will fare best in the future. Our own society is a multi-cultural one. But looking at it from the child's point of view, as we all try to do, it may sometimes be necessary to resolve or diffuse a clash between the differing cultures within his own family.”

“Looking at it from the child’s point of view”, on the evidence before me, it is clear that Z is aware at an age appropriate level (she is five) that she is Egyptian and that Egypt is of her country of birth. T told me that she has taken steps by contacting a LCC social worker who is based in the main mosque in L to assist her in ensuring that Z has religious instruction in due course (she was advised that that should start when Z is seven); the approach was confirmed to have taken place by the local authority. T described how she and Z were learning some Arabic by using language courses available online. T told me that the school is aware that Z is being raised as a Muslim (she is given Halal food at school and at home) and of her Egyptian heritage; this heritage has been celebrated while at school. There are other Muslim children at school, some of whom have Arabic, although not Egyptian, backgrounds.

If she remains in the care of T, she has told me, and I accept, that she intends to raise Z as a Muslim. In practice I accept, too, that it would mean that Z would be being raised as a Muslim by a non-practising Christian mother in a multi-cultural but predominantly Christian society. While it is self-evident that it would not be the same as Z being raised in Egypt, I find that T has demonstrated and is demonstrating real commitment to Z growing up with access to that part of her heritage and there is no evidence that T would not offer encouragement and support to Z to be involved with Islam, and to be a practising Muslim; it must be kept in mind that the religious aspect of Z’s life is not determinative and Z’s approach is sensitive to the need for the child to build her on own identity formed in part from her Egyptian-Arabic background and heritage; there is no indication that T intends to impose her own ethnicity, English heritage or the Christian religion on Z or that she has ever intended to do so.

It is necessary to take a realistic and objective view as to the possible long term and life-long harm that may be caused by Z not returning to her country of birth; while balancing against it, as I must, the harm that is more likely than not to be suffered by Z on her removal from T and what she sees as her home; as has been set out in the evidence of her social worker and guardian. Z’s situation is not the same as her having been separated from a birth parent or from her biological family for that is an invariant wherever Z lives. Secondly, Z will, in due course, have to come to terms with the fact that she was abandoned and the harm caused to her by the consequent feelings of rejection and abandonment that will flow from the way that knowledge is imparted to her. Thus part of my consideration of her life-long welfare must be which option or placement can best provide her with support as she comes to terms with the circumstances of her birth, as that will affect her self-image and emotional resilience during her adolescence and into adulthood.

As regards the first, it is an incontrovertible fact that parents and/or carers often leave their children’s country of birth with their children and those children are equally often raised in a country where they were not born, and where the children are not necessary nationals. There is nothing to suggest any significant emotional or psychological harm is caused by that act alone, there is no sense of rejection or abandonment for the child concerned. Such a child accepts the decisions made by the adult carer; it is not, by itself, a difficult concept for a child to grasp both at the time and into adulthood. An attachment to a country of birth, particularly for an infant as Z was at the time she left Egypt, is entirely conceptual rather than one based on actuality, quite unlike her attachment to T or the emotional consequences of coming to terms with her abandonment as a new born baby. Children brought up overseas learn an attachment to their native land and culture by the reinforcement of that part of their identity by their parents; T has already demonstrated that she will bring Z up to be proud and aware of her Egyptian roots.

There is no evidence before me of how the authorities in Egypt intend to support Z in learning about, and coming to terms with, her abandonment as a baby. It would, on the evidence before the court, apparently be left to which ever family she is placed with to explain her origins to her as they saw fit. I have no evidence about their attitude towards such children generally or specifically as it would relate to her. I am unconvinced by the bald assertions made on behalf of the Ministry that there is no longer any discrimination against children and adults without families in Egypt; not least because that does not coincide with the oral evidence of Mr Basset himself. There was no objective or independent evidence before me, other than the opinion evidence of Mr Edge, about discrimination against “orphans”. It is not disputed that she would not be entitled to any inheritance from any family she was placed with in Egypt, unless they chose to provide for her, regardless of the number of years she was a part of that family. This is in contrast to her rights of inheritance should she be adopted by T under English and Welsh law.

It is certainly arguable that as an adult Z might have a sense of loss as a result of not having grown up in Egypt, but that will be largely of abstract perception. The likelihood of harm to Z caused by that sense of loss is considerably less the likelihood of significant emotional caused to her harm as a result of Z’s separation from her secure attachment parental figure, both in the short and in the long term. I was particularly struck by the guardian’s evidence about how such a decision might be explained to Z both as a very young child and later as an adolescent and adult who may well be unhappy with the decision that was taken to remove her from a home where she knew and could feel that she was settled, happy and well looked after. In the evidence provided by the Ministry this question is never addressed; the explanation, such as could be discerned form the oral evidence of Mr Basset, amounted to telling Z that the Ministry, as an arm of the Egyptian government considered that Z “belonged” to the Egyptian state and insisted that she had to go back to Egypt to grow up there, although everyone had accepted that T had been looking after Z properly and well and that Z had not suffered any harm while living with T. It is instructive to consider how Z could come to terms with such an explanation.

Z’s removal from her secure attachment parental figure, her “psychological mother” T brings with it numerous risks to her emotional welfare and longer term well-being. To begin with Z is highly unlikely to be able understand why she is no longer able to live with her “mummy”. It is almost impossible to construct an age appropriate reason that could make any sense to her, for unlike in the public law cases alluded to by Mr Setright, Z’s mother-figure (T) is not ill, she is not unable to care for her for any other reason such as addiction or imprisonment, T poses no risk to Z’s physical well-being by reason of her having injured Z, or another child; it is not necessary here to give further illustration of the accessible and readily comprehended reasons given to children about why they had to be removed from their parents, these are decisions which are manifestly taken to safeguard a child and in their best interests. The risk to Z from which the Ministry submit she needs safeguarding is the nebulous and to a child, incomprehensible, risk that her background, ethnicity and heritage will be compromised. As a result, certainly in the short and medium term, there is an undoubted likelihood that would be Z confused, distressed, deeply unhappy and resentful and, as a result act out, bringing a risk of breakdown into any new placement, particularly one where they may be some resentment against her already, such as within K’s family, or one where there is a perception that this child ought to be grateful for the home being offered to her.

If removed to Egypt Z will feel abandoned by T and she is a child who will sooner or later come to learn that she has already been abandoned once, at birth. One cannot say when she will be told about this fact if she is moved to live in Egypt, as it was not dealt with on behalf of the Ministry, but there must be a risk that she would find out sooner rather than later, not least as a result of the prevailing social attitudes in Egypt. Evidentially, and in stark contrast, the court has heard that T has considered the need to deal with this issue sensitively and has said that she will seek out and take appropriate professional advice and support; the local authority would provide the help and advice through their adoption services. On being removed from T’s care the likelihood is that Z will blame herself, as it is well known that children commonly do in similar situations; Z will feel abandoned and look for reasons for that abandonment. To learn that she had already been abandoned at birth as well will add considerably to her feelings of rejection and the harm to her long-term emotional well-being will be compounded.

If returned to Egypt there remains the possibility, if not probable likelihood, that Z could be subjected to genital mutilation. The Ministry’s assertions that this is no longer likely are flatly contradicted by the 2015 findings contained in the report of the Health Ministry. The issue was simply not dealt with in respect of the proposed placement with any of the alternative families, including the family of K. If such mutilation were carried out on Z it would be a gross interference with her life-long physical and psycho-sexual well-being and is, on any terms, totally unacceptable; certainly under the terms of the UNCRC. She should not be placed at risk of it occurring and there is no evidence before this court that would provide any real assurance that this would not happen to Z as it happens to the majority of girls in Egypt.

The loss of Z’s nationality and direct access and immersion in the culture, heritage, language and the predominant religion of the country of her birth and the likely harm that would flow from that is, in essence, the harm that is alleged by the Ministry. There is no other harm that could be, or has been, identified. Z was not brought to the UK by T as part of a deliberate deception on her part; it is accepted by this court that T had, when she arrived in the UK, intended to go back to live in Egypt with Z. For the reasons I have set out above T did not do so, but she remained committed to caring for Z for the rest of her life. Without delay or any attempt at concealing the presence of Z in this jurisdiction T made the applications that were appropriate under UK law; she applied for an adoption order as a means of providing Z with a family for the rest of her life. While this court accepts, and is well aware, that adoption, particularly adoption without consent, is an anathema in many cultures and in many jurisdictions, this is not a case where consent of a parent would be dispensed with as there is no parent. The laws of the United Kingdom do not provide for an alternative permanent placement (excepting that provided for in surrogacy cases).

The conduct of the case by K supports the submissions made on behalf of T, the local authority and the guardian, that his primary reason for seeking Z to be placed in his care related more to his concern for himself, his first wife and their family than for Z herself. In both his written and oral evidence he made clear that he was personally fearful of repercussions for himself as consequences of Z travelling to the UK and remaining here. He reneged on his initial express apparent agreement to T adopting the Z in the UK only once the view taken by the Ministry became apparent. At all times he has shown that his primary concern was his own welfare and reputation and the negative consequences for him as a result of the events of this case, and not for the welfare of Z. I wholly reject his explanation that he had only written to the child’s lawyers to agree to the adoption because he thought it was part of a plan by T to get immigration clearance extended for Z. I do so, in large part, because it is also part of his case that he, himself, fully understood the legal concepts of “adoption” because he had repeatedly explained to T that what had happened in Egypt was not adoption but fostering. He cannot have it both ways.

K has shown little or no interest in Z herself. His relationship with T came to an end in or around December 2014, certainly by the start of 2015, after which he took no steps to arrange any contact with Z by phone or by Skype or Facetime despite being in contact with the child’s guardian and solicitors. He did not attempt, at any time, to open an alternative channel of communication with the child, he did not send, or attempt to send, a card, a letter or a gift. Moreover, he has made no enquiries as to Z’s health, welfare or general well-being and made no attempt to keep himself informed about her welfare. K’s family have never shown any interest in Z and to suggest, as Mr Basset did, that Z has any kind of a close relationship with any of K’s children stretches the facts of this case to breaking point. Z does not see K’s children as her “siblings”; she barely knows them and they have never demonstrated any interest in her at all. K’s family are strangers to her and the fact that K, himself, is now estranged from her is largely as a result of choices he has made.

Once T had stopped communicating with him he left Z alone. If, as he claimed at the hearing, he had had the intention of providing a home for Z within his family, he did little, if anything to promote or pursue this intention with the court. He did not pursue his “application” (he has not made any formal application to the court) to be considered as an alternative placement with the local authority. He did little to pursue this course with the guardian; (if he did send an attachment to an email to the child’s solicitor some months before the hearing in September 2016 he did not follow it up); nor did he file any evidence setting out his plans for Z including such basic matters as the provision for her accommodation, education and contact with T; nor did he offer evidence from his first wife, despite the fact that T had raised her conduct over Z as an issue early in the case. The fact that he has did not produce any evidence to contradict the evidence of T can only suggest that it is likely that there is no such evidence. Based on K’s early acquiescence to the adoption, his prolonged inaction regarding Z’s placement with him and his lack of commitment to Z personally, in conjunction with the last minute attempts to produce a case during the currency of the hearing, there can be no other conclusion than that his application for Z to live with him was an issue of personal expediency for him and nothing else.

The circumstances in which K and his family became the favoured option to put forward by the Ministry are remain opaque, as the evidence of Mr Basset did not clarify matters. It is unclear whether he has been "officially" approved by the Ministry or by Mr Basset alone and K’s account of his approval of his family differed from that of the Ministry. The written assessment provided to the court was, on any view, superficial. It did, nonetheless, reveals a considerable shortfall in income that is of concern within the context of assessment as it was based on his assuming the financial responsibility for the care of another child (accepting as he did that T had always provided for Z); it did not address practical issues such as educational provision, even where Z would sleep and more significant matters directly relating to Z’s welfare such as the attitude of K’s wife to FGM or how he and she would deal with the possibility that Z would face discrimination, or the attitude of his other children to having Z come to live with them. There is no evidence before this court which addresses K's first wife’s attitude towards having Z in her home. Accepting as I do T’s evidence about the way in which she was treated by K’s wife regarding Z’s placement, the only evidence there is points towards her having had scant regard for Z’s welfare in the past. From Z’s point of view, she would be placed with strangers including someone she has not seen or heard from for a long time who has never looked after her without her “mummy” being there anymore.

The Ministry has, no doubt for good reasons of its own, dismissed or ignored any of the obvious difficulties this court must have regard to concerning K’s credibility. In addition to those I have already mentioned above which relate directly to Z and to his suitability as a possible carer for her, and which, I assume, probably accounted for Mr Basset’s reluctance to whole-heartedly support K in his oral evidence; the Ministry has chosen to overlook the deceptive and misleading information regarding the reasons for Z’s remaining in the UK that K gave to the Egyptian authorities repeatedly over many months in 2013 and 2014 when he failed to inform them that Z was the subject of court proceedings, a ward of court and that there was an application for her adoption being pursued by T. His deception of the authorities in Egypt included telling them that T’s mother was ill and that required T to remain in the UK. K told me in his evidence that T’s mother suffered ill-health and that he observed it himself. This was disputed by T, and her evidence was supported by the social worker and the guardian, who had both met T’s mother on several of their visit’s to Z and T at home. In fact, I am told that T’s mother is an active woman who forms part of T’s support network and is someone who loves Z and is loved by her as a grandmother-figure. Simply put, K lied about T’s mother, the reasons for Z remaining in the UK, deliberately misled the authorities about the likelihood of Z returning with T and deceived them by withholding information about the legal proceedings.

In K I gained the impression of a man who would say whatever he thought best suited he audience and, more importantly himself. He deceived T throughout their relationship by lying about his continuing marriage to his first wife. He told, or at the very least, allowed T to think that Z’s placement with them was akin to adoption and used that word in his explanations to her; this much was evident from his own oral evidence during which he used the word “adoption” frequently interchanging it with fostering. While T’s business was thriving he was able to live off her and, no doubt, his Egyptian family were better off as a result. I accept T’s evidence that K’s wife used Z as a lever to try to extract more money, so that T signed her car over to them. K must have been aware of what was happening at the time, as his relationship with T was evidently, from his point of view, largely a financial and business arrangement which suited him. K would have been keen to keep T happy and help her with Z because that is what she wanted to do. I have no doubt that he understood the import of the adoption application in this court and that he had at the outset agreed to it because it suited him; he had not financially supported T or Z and did not wish to take on the responsibility. I conclude that K never saw Z as part of his Egyptian family and that he and his first wife were not interested in taking an orphan into their home; if they were they could have done so before at any time during his involvement with the orphanage.

I have carried out an analysis of the evidence and the options for Z throughout this judgement and set out my conclusions here. I reject the proposition that Z return to Egypt with T; it is unrealistic and would leave T and Z stranded without support, accommodation or any financial provision in what is to both of them in essence an alien land. Although Z would remain in the care of her primary carer, T would be placed in an insecure and uncertain situation as to her own status, vulnerable to the possibility of prosecution, friendless, estranged from her “husband” and in a precarious situation generally as Egypt has continued to be subject to civil unrest and there is nothing to indicate that T could resume her former lifestyle, or re-establish her business. To place Z’s “mother” and primary carer in such a situation, and, as regards Z a position of such uncertainty with respect to her status vis-à-vis the child would be undermining to the extent that it would place T at the extreme end of the spectrum with respect to the risk to her own emotional and psychological wellbeing which would, inevitably, directly affect the child’s welfare.

Z, herself would continue to be a child in the care of the State, with the continuous uncertainty as to her placement with T. Z would remain a parentless child at the risk of continuing stigmatisation and discrimination against her for the rest of her life. The risk of FGM may be lessened while she remained with T, but as the estranged wife of K, T’s personal autonomy and authority will be considerably reduced, there is nothing to stop K or the Ministry from removing Z from T. The advantages are illusory, for although Z would return to her country, culture, religion and heritage of birth and will remain in the care of her “psychological mother” and primary carer their situation will be so precarious as to undermine any such advantages. Z may resume some sort of relationship with K but the integrity of her placement with T will be subject to his caprice and that of his family.

If Z were to be returned to Egypt to without T to an alternative family, which “from the child’s point of view” must include that of K, there are numerous disadvantages to her welfare from the outset, she would be cared for by strangers most, if not all, of whom will have had no previous relationship. On the evidence before me this would represent a leap into the unknown as to the ability of the members of the proposed families to provide Z with adequate accommodation, schooling and emotional support; their ability to assist and encourage Z in the formation of positive attachments with them; as to the likely between longevity of the placement. The likelihood of the successful integration of Z into the social and cultural fabric of the local community and wider society is speculative, involving as it does, tangible risks, identified in the evidence above, for, again, Z would remain a parent-less child at risk of harm contiguous with stigmatisation and discrimination; of FGM; and, of possible placement breakdown as a result of Z’s reaction to her sudden separation from T. This latter involves a substantial risk to the child’s long-term psychological welfare that is more likely than not to cause her to suffer significant harm.

If Z remains in the UK with T she can do so pursuant to a Child Arrangements Order (CAO) or an adoption order. The former would maintain the status quo, and would have the advantage that she would remain a child of Egyptian nationality. In addition, Z would remain in the care of her psychological parent and primary carer; there would be no sudden change of her circumstances; and Z would continue to have her all her physical, educational and emotional needs met by T to a high standard. A CAO would give T parental responsibility for Z and provide a degree of certainty with respect to the legal relationship in the UK between T and Z. As it would not involve change to her nationality (she would remain Egyptian) perhaps Z would retain an ability to travel to her native land, if not during her childhood it seems as she would have to remain there, then as an adult; yet the CAO would not be recognised in Egyptian law so she would revert to her present status. Against that both Z and T would remain exposed to uncertainty about Z longer-term status in the UK and doubt about the security of her placement, her immigration status, her access to education (certainly at tertiary levels) and this would place continuing pressure and stress not only on Z herself but on T as her primary carer which would extended into adulthood. This solution would not, in any event, satisfy the concerns of the Ministry and, for these reasons, I accept the submission of the local authority that it would place Z in a psychological and practical limbo.

The latter, an adoption order, would provide Z with appreciably greater security. Before I consider the advantages and disadvantages to Z’s welfare throughout her life I must give some consideration to T’s intentions and extent of the any breaches of the ACA, whether real, technical or of “the spirit” of the law in her application to adopt Z. The court is aware of cases where that there have been putative adopters or applicants for parental orders (including where an order is sough for an orphan or in suspect surrogacy arrangement) who have deliberately breached the statutory provisions and regulations and engineered a case so that at final hearing the court will be presented with a fait accompli and be unable to remove the child from the applicants because of the harm it would cause the child. I have been reminded of two case in particular; in In Re R (No 1)(Intercountry Adoption) [1999] 1 FLR 1014 the prospective adopters deliberately delayed proceedings, by prevarication, they delayed telling the local authority of the presence of the child in the jurisdiction, then caused further delay in giving information to the local authority and the court and failed to provide translations of relevant documents for the court; the court dismissed their application for an adoption order, and instead warded the child. In Re X (A Child) Northumberland CC v Z [2009] EWHC 498 (Fam) prospective adopters tried to take advantage of a perceived lacuna in the law by bringing a Kenyan child to the UK as a “privately fostered” child intending to deceiving both the Kenyan and British authorities. The subject child was then concealed from the local authority and other agencies, this included not registering the child with a GP; the latter putting the child at risk. Both cases concerned deliberate, serious and prolonged deceit which persisted into the proceedings themselves and no adoption orders were made.

T has never been party to any such delay; she has been fully co-operative and, I find, honest. Once she had decided that she and Z could not return to Egypt because of the worsening situation in the country and the loss of her business and income she informed the local authority and applied to the court for an adoption order in November 2013. At no point did she seek to conceal Z’s presence in the UK from anybody or any of the British authorities including the (then) UKBA as she immediately sought an extension to Z’s visa. Any delay in the case was caused as a result of the unsuccessful attempts to engage the Egyptian authorities. I accept T’s evidence that she believed that she and K had “adopted” Z in Egypt and that Z had been placed in their/her care indefinitely; she had assumed the duties and responsibilities of a parent. It was for that reason that T had taken up temporary employment on her return, so that she could provide for herself and for Z; she placed Z in nursery so she could work; any responsible parent would have done exactly the same. T had very good reasons not to return to Egypt and, what is more, initially and for some considerable time, K agreed with her and with the plan to adopt Z as a single parent. I have already set out my findings as to K’s reasons for changing his mind.

While I cannot apply the law of the Arab Republic of Egypt, I take into account the law as set out by the Ministry, specifically: Egypt has ratified the United Nations Convention on the Rights of the Child which it has sought to implement it by statute in The Child Law of 1996, as amended in 2008; pursuant to Article 3 of The Child Law, the Egyptian Courts are required to apply the principle of the best interests of the child in all cases concerning children. By Article 5 of the Child Law, adoption is prohibited, although, fosterage, “kafala”, is permissible, and occurs when a child whose parents cannot look after the child or who has no known parents is brought up by another family. An orphaned child, such as Z, is the responsibility of, and comes under the authority of, the local Foster Care Committee which is set up and appointed by the Ministry of Social Affairs. All major decisions in the child’s life are made by the local Committee which acts in loco parentis as the child’s guardian until that child reaches 18 years of age. It is understood that an adoption order made by the English courts would not be recognised or enforced in Egypt, and that the making of such an order would be considered a serious breach of the foster agreement and a grave breach of trust by the adopting parent. It has been confirmed to me that change of name or obtaining of a new nationality would most likely lead to loss of Egyptian nationality. It would appear that there is no provision for “mirror” orders or for the recognition or enforcement of the judgement of foreign courts.

On behalf of the Ministry the application for removal of Z from T’s care and her return to Egypt relates to primarily to the contention that the care Z would receive from T, in the UK, and not in Egypt, is a deficiency in the promotion of Z’s cultural, religious and national heritage. These are not insignificant matters as when assessing the claim of the child’s state of origin to have the child returned, in Re X (A Child) [2008] EWHC 1324 at it was held “When considering welfare in an international case such as this, the children’s circumstances and welfare should not be viewed from an entirely domestic perspective. X is a Kenyan child and ... Kenyan concepts of welfare are relevant the court cannot automatically apply Western standards and concepts of welfare given the international nature of this case and Kenyan concepts of welfare. The views and principles of the [General Republic of Kenya] as to what constitute or at least influence the best interests of the child are part of X’s welfare. Although it must apply English law, the court ... should take an international perspective when considering X’s background and future.”

In this case there is no application to have the case decided in Egypt and the jurisdiction of the court to make decisions regarding Z has not been challenged. Any decision taken about Z, or any other child, must take into account the realities of the individual child’s situation and this has to be placed in the balance when consideration of the adoption application and the welfare evaluation is being undertaken. I have applied concepts of harm and welfare that are widely drawn and would apply to any child in a similar situation; thus, it is not disputed by the Ministry that Z would be caused harm by her removal from Z’s care as that is universally accepted that any child would be distressed and suffer some trauma as a result of being removed from the home and the care of their primary carer to whom they are obviously attached; as is the likelihood of harm caused by stigmatisation, discrimination or FGM.

In the recent Court of Appeal decision in Re W (A Child) [2016] EWCA Civ 793, while the court was concerned with issues that were factually different from this case (the approach to be taken in determining a child's long-term welfare once the child has become settled in a prospective adoptive home and a viable family placement is later identified) the court McFarlane LJ considered the application of the Supreme Court judgment in Re B [2013] UKSC 33 in that context; his observations at [68] are of some relevance here: “[68] Since the phrase "nothing else will do" was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges in both the High Court and Court of Appeal have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described by Baroness Hale in paragraph 215 of her judgment: "We all agree that an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do." The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase "nothing else will do" is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase "nothing else will do" is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S [2013] EWCA Civ 1146, Re R [2014] EWCA Civ 715 and other cases).”

It is only after a full welfare analysis has been undertaken of the “pros” and “cons” that the overall proportionality of any plan for adoption falls to be evaluated and it is then that the phrase "nothing else will do" should be deployed. The “cons” identified by the Ministry are relevant and must be placed in the balance, as set out in more detail above and are summarised here, they are that Z will be the kept away from her country of nationality and origin; her nationality of origin will be extinguished; she will be separation from the culture into which she was born and raised previously; there will be an erosion of her connection with religion of the Republic; and separation from K. Added to them is the fact that an adoption order made in this jurisdiction will not be recognised in Egypt and is antithetical in the child’s state of birth. Together they comprise a “limping adoption” as set out by the President at paragraph [104] – [111], Black LJ at [187] – [188] and Sir Richard Aikens at [192] in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112.

This consideration and the correct approach to it is encapsulated in [187] of the judgement of Black LJ

“As Goff J said in In re B(S), in a passage quoted by the President at paragraph 88 above, that it was not necessary to prove what the child’s domicile actually is or to go into the adoption laws of the relevant foreign country because the child’s domicile is not a jurisdictional requirement and nor is the English court applying foreign law in determining the adoption application. I agree with Goff J that strict proof of domicile/domiciliary law may not be necessary for the reasons he gave. However, it seems to me imperative that, when considering whether or not to make an adoption order, the court should consider what links the child has to other countries (perhaps especially, but not necessarily only, in terms of domicile or nationality), and should consider what risk there is that any adoption order that it makes may not be universally recognised and reflect upon the practical implications of this for the child. At paragraph 104 et seq, the President has set out and commented upon the checklist in section 1(4) of the 2002 Act and I would endorse what he has said about it. Quite apart from the express terms of the checklist which focus attention on the child’s background, section 1 of the Act is quite wide enough to enable, indeed require, the court to consider and weigh in the equation matters such as the possibility of a “limping” adoption order which, although fully effective in this country, might be ineffective in other countries that the child and his adopters may wish or need to visit. By way of practical example, suppose that the child and his adoptive parents return to the country of which he and his natural parents are/were nationals in order to explore his cultural roots; would the adoption order be recognised there and if not, what consequences could flow? This is not to say that an adoption order could not be made if it were to be demonstrated that it would not be recognised in a country which may be of importance for the child in future but it would be a factor that would need to be weighed in the balance, along with all the others, in deciding what order is going to be most conducive to the child’s welfare throughout his life”.

This court has had this in mind throughout, indeed it is why I asked that the Ministry answer certain questions (which they did in their final written submissions.) There is no doubt that the decision not to exercise any residual discretion to assist Z in travelling to Egypt when she is older, or as an adult, for the kind of trip envisaged by Black LJ is a disadvantage to her and will be throughout her life. This situation is one that will recur in cases before the courts and not only in adoption applications, for it can happen in cases of international surrogacy. It is most acute where there remains family and other ties in the country of the child’s birth. Z has no family at all in Egypt, except in the person of K she has no connection with any other person. The disadvantage of not being able to travel to Egypt (unless the Egyptian Government decides to exercise its discretion in her favour in the future) has to be balanced against the advantages to Z throughout her life of being part of T’s family (who she already considers to be her family).

The positives or “cons” of making an adoption order can be summarised as follows: Z will remain in the care of T, who is “psychological mother”; she receives a very high standard of care from T; T is committed to giving her an upbringing which recognises, celebrates and promotes her ethnicity, her Egyptian-Arabic background and the Islamic faith. As Z has no identifiable biological parents and the option of returning her to birth parents does not exist; and particularly for a child in her situation adoption brings with it those advantages set out by Black LJ in Re V (Children) [2013] EWCA Civ 913 at paragraph 96 (i) and (iv):

“i.

Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement…

iv.

Routine life is different for the adopted child in that once he or she is adopted, the local authority has no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example).”

That feeling of belong or security, identified in (i) above, is, for Z, only available for her in the UK as the adopted daughter of T. Any placement in Egypt would not have the same effect, for reasons discussed in the body of this judgement. This would include her rights of inheritance and succession as an adult. T has shown undoubted commitment to Z who is already treated as part of the extended family; she has cared for Z to the highest standards and provided for her, physically, emotionally and financially. T has provided for Z’s education by has providing her with a place in a supportive school. T has shown that she is committed to ensuring that Z retains pride in and knowledge of her roots, learns Arabic and has made provision for Z to follow in the Islamic faith. In addition, the court takes cognizance of the fact that T has not wavered in pursuing this application at personal and financial cost. In this case an adoption order is a legal manifestation of T’s commitment to provide Z with a family and a place in the wider world which recognises where she came from; it provides a considerable foundation on which to base her childhood and from which she can grow safely and securely into adulthood and beyond; in considering Z’s life-long welfare, it is this adoption that is most likely to provide her with the most secure emotional and psychological base and family life that will endure into her womanhood.

I have in the body of this judgement applied the welfare checklist and considered the benefits and disadvantages, or harm to Z of all the options before this court. In doing so I have balanced the not only her short term needs but her need for security and protection and her well-being throughout her life. It is to be hoped that as an adult, at least, she is able safely to return to visit the country of her birth both with her adoptive mother and on her own.

In considering the application by T to have Z known by T’s family name I keep in mind her need to integrate within her own community and wider society along with her right to retain her name as given to her after her birth in Egypt, which reflects her origins and her background along with Art 8 of UNCRC; Z is to be known by her given names to which will be added the family name of T.

I refuse the application by the Ministry to return Z to Egypt pursuant to the inherent jurisdiction as I have concluded that it is in her the best interests of her welfare throughout her life to remain in England and become the adopted child of the Applicant.