TY (Preliminaries To Intercountry Adoption)

The subject of this application for an adoption order is TY. He is 18 years old, and was born and raised in Jamaica. The applicant is Ms CM, who is, by birth, his maternal aunt. The adoption application was issued on 29 July 2019, three days before TY’s 18^th birthday.

This application was issued in the Central Family Court. It was referred to me under PD14B Family Procedure Rules 2010 (‘FPR 2010’) given the applicant’s apparent non-compliance with the requirements of the pre-adoption provisions of the Adoption and Children Act 2002 (“the ACA 2002”) and the Adoption with a Foreign Element Regulations 2005 (“the AFER 2005”). I gave case management directions in the case on 13 August 2019. Cafcass High Court was notified of the issues in this case, but considered that it could offer no useful role given TY’s age. The Home Office was not formally notified of this application given that (a) TY is indisputably lawfully in this country (see the Upper Tribunal decision at [9] below), and (b) even if an adoption order is ultimately made, TY will not automatically acquire British Citizenship.

Ms Cronin, on behalf of Ms CM, invites me to give directions to allow the adoption application to proceed notwithstanding the failure of her client to comply with all preadoption requirements. Ms Kakonge, for the respondent Local Authority does not oppose the progress of the adoption application. Importantly, she accepts on her client’s behalf, that the investigations and duties of the Local Authority have not been compromised or prejudiced in any way by the non-compliance. The Local Authority is satisfied that TY appears to be well-settled with Ms CM. That said, it is necessary for a court to be required to consider carefully any application, particularly one as significant as adoption, which appears, in its progress to or through the court, to contravene the clear requirements imposed by statute.

The specific questions which arise for determination are:

It had originally been the Local Authority’s intention to raise a fourth point, namely that Ms CM’s communication to the authority on 8 May 2019 was not in a form which constituted ‘notice’ of intention to adopt. I have seen the electronic pro forma completed by Ms CM; I have seen the information which she supplied. Ms Kakonge sensibly conceded at the hearing that the electronic form completed by Ms CM was not ‘straightforward’, was not suited to this activity (the giving of notice of intention to adopt) and ‘could have been clearer’. That the information provided by Ms CM was therefore, in my finding, ‘ambiguous’ and imprecise was not entirely her fault, and the Respondent did not pursue this point.

TY was raised for his first 8 years by his mother in Jamaica; he is the youngest of her five children. After a long illness, TY’s mother died in 2010. Ms CM, who lives in London, had supported TY and the family over many years, and, following TY’s mother’s death, undertook to TY’s family that she would care for and indeed adopt TY. The filed evidence reveals that Ms CM has stepped up her involvement in TY’s life, and certainly since 2010 has arranged his daily care, fully financially supporting him and guiding, mentoring and sharing his activities and concerns. Although physically living apart for most of this time, Ms CM told me that she initially spoke with TY three or four times a week, and as social media facilitated communication, they were in daily contact. I have seen examples of their daily WhatsApp communications, and both of their witness statements attest to their close loving relationship. TY says that he feels like a ‘brother’ to Ms CM’s adult sons. They in turn are very supportive of the plan for TY to be a full member of their family.

Ms CM initiated adoption proceedings in Jamaica in 2011 when TY was 10 years old.

Had this adoption order in Jamaica been made one year or more earlier, it would have been a designated ‘overseas adoption’ (see section 66(1)(d) and section 87ACA 2002 and Adoptions (Designation of Overseas Adoptions) 1973 (SI 19/1973) (‘the 1973 Order’), and therefore capable of recognition as a full adoption in England and Wales. However, the 1973 Order was revoked by the the Adoption (Recognition of Overseas Adoptions) Order2013 (SI 1801/2013 (Footnote: ¹)) which came into force on 4 January 2014

Ms CM submitted TY’s application for entry clearance as a child to be adopted in the UK on 17 April 2015 (TY was still 13 years old). The application was refused on 14 October 2015, and the refusal was upheld by the First Tier Immigration Tribunal in a determination dated 27 June 2017 (TY was, by now, 16). TY’s appeal against the First Tier Tribunal decision was allowed by the Upper Tribunal in a determination dated 14 June 2018 (TY was 16, nearly 17) which found the First Tier judge, the Home Office presenting officer and TY’s then counsel all erred in their reading of the immigration rules and their understanding of the family law arrangements sought to be incorporated as part of the rules. The Upper Tribunal found that TY satisfied the requirements of the immigration rules on entry clearance for adoptive children and also allowed the appeal on human rights grounds. The determination was reported: see: TY (Overseas Adoptions - Certificates of Eligibility) [2018] UKUT 197 (IAC) see in particular [32-33]; [46-47]; [52-60]).

Thereafter, despite Ms CM’s repeated requests to complete the visa process, the Home Office took some 7 months to issue TY with a visa permitting his entry for settlement as an adoptive child. TY was still in Jamaica. In December 2018, Ms CM’s younger son travelled out to be with TY. On 22 February 2019, Ms CM herself travelled to Jamaica to join TY.

The application and appeal process had taken some 3 years and 9 months to be completed. To recap, TY was aged 11 when the adoption process in Jamaica was commenced, was 13 when his entry clearance application was submitted and aged 17 and 5 months when his visa was issued. Ms CM complied with all the Jamaican adoption and immigration procedures. I am satisfied that she made repeat efforts to expedite these processes. TY’s visa was issued in January 2019. He travelled to the UK in the company of Ms CM (as required under regulation 4(3) of the AFER 2005 (Footnote: ²)) arriving on 12 March 2019.

In order to comply with regulation 4(4) AFER 2005, Ms CM should have notified the Local Authority of TY’s arrival in this country within 14 days of arrival (i.e. by 26 March 2019). She did not do so. She had recalled that her PACT social worker had advised her to notify the Local Authority when TY arrived in the country, but not of any timescale. She ultimately notified the authority (by completing a pro forma electronic form) on 8 May 2019. Ms CM’s notification was referred to the adoption team. The Local Authority’s adoption team manager responded by email dated 3 June 2019 advising Ms CM that: “There is no current role for the Adoption and Post Permanency Team”. Ms CM was confused by this response and assumed that she did not, after all, need to adopt TY in this country or indeed take any further action. She then contacted an immigration solicitor to check on TY’s immigration status when he attained the age of 18; the immigration solicitor referred her to Freemans for family law advice. Ms CM visited that firm on 24 July (N.B. nine days before TY’s 18^th birthday). Only then did she learn of the pre-adoption requirements and the need to adopt TY here. An application for adoption was hastily prepared and lodged the following day, and formally issued a few days later.

During this process, Ms CM has had periodic contact with the Local Authority. She had first contacted the adoption team on 22 November 2012 to enquire about adopting

Any application for adoption must be made before the person to be adopted attains the age of 18 (section 49(4) ACA 2002). The order may be made after that date but before the subject’s 19^th birthday (section 47(9) ibid.). In this case, we are in that final year within which an adoption order is still possible.

The pre-application adoption requirements are set out in sections 42 to 44 of the ACA 2002, which, in an intercountry adoption application (as here), should be read with section 83 of the ACA 2002 and Part 2 of the AFER 2005. Section 83 applies where a person who is habitually resident in the British Islands brings “a child who is habitually resident outside the British Islands into the United Kingdom for the purpose of adoption by the British resident” (section 83(1)); section 83(5)/(6) enable the enactment of regulations, which are, for present purposes, the AFER 2005.

The language of the statute and the regulations in these respects contains a mix of the mandatory and directory:

Regulation 3 and Regulation 4 of the AFER 2005 set out a number of requirements which apply before, during, and after the proposed adopter brings or causes a child to be brought into the UK. I paraphrase them here. Of the requirements which are imposed prior to the resettlement of the child, a “person intending to bring” a child into the UK “must apply in writing to an adoption agency for an assessment of his suitability to adopt a child; and give the adoption agency any information it may require for the purpose of the assessment” (regulation 3). Also prior to bringing the child into this jurisdiction, the proposed applicant must obtain a certificate from the Secretary of State at the Department for Education, confirming that the applicant has been properly assessed; the proposed applicant must visit the child abroad, and report on that visit (both before and afterwards). All these requirements (which appear mandatory) were fulfilled by Ms CM here.

Regulation 4(3) requires the proposed applicant to accompany the child to the UK. Ms CM did so: see [11] above.

Regulation 4(4) contains the requirement on the prospective adopter to notify the local authority of the child’s arrival in the country within 14 days of arrival, and of the applicant’s intention to apply for an adoption order in accordance with section 44(2) of the ACA 2002. This notification triggers the range of “functions” on a local authority which are set out in regulation 5. The essential functions include ensuring that the child is registered with a medical practitioner, to ensure that the child is visited within one week and weekly thereafter for the first four weeks, and for the local authority to hold a review after four weeks. The visiting, and the obligation to review further, is then scheduled by the regulation (regulation 5(1)(f)(i)/(ii)) to take place at intervals of four months and ten months after the child’s arrival in the UK.

Separately, and in any event, the applicant is required to give a “notice of intention to adopt” to the local authority (section 44(2)), and this must be given not less than 3 months before the date on which the application to adopt is made. This provokes an investigation by the authority (section 44(5)/(6)) which should “include the suitability of the proposed adopters” and any other matter relevant to section 1 of the ACA 2002.

As to the notice provisions, as a matter of fact, Ms CM gave notice to the Local Authority of TY’s arrival in this country and of her intention to apply for an adoption order (regulation 4(4) AFER 2005), albeit that she did so 6 weeks later than she should have done. This self-same notice was (by 9 days) short of the required “three months” notice to the Local Authority of her intention to adopt TY (section 44(3) ACA 2002). In considering the failures to adhere to these time-limits, Ms Cronin has urged me to take a purposive view of the statute, and to respect TY’s and Ms CM’s human rights. She has referred to a number of authorities including Re X (Surrogacy: time limit) [2014] EWHC 3135 (Fam), [2015] 2 WLR 745, [2015] 1 FLR 349; KB & RJ v RT [2016] EWHC 760 (Fam); and Re A & B (No.2 Parental Order) [2015]

I have drawn attention to section 42(1)/(5) above, namely the further requirement that the child should have “had his home” (Footnote: ³) with the applicant for a specified period prior to the application; there are different qualifying periods depending on the nature of the application (Footnote: ⁴), but for present purposes section 42(5) is relevant. This section provides that “the child must have had his home with the applicant … for not less than three years (whether continuous or not) during the period of five years preceding the application”. The rationale for this is to ensure that the child is well-established with the applicant, and further (per section 42(7)) to provide sufficient opportunities to the local authority in whose area the home is to “see the child with the applicant… in the home environment”.

For an intercountry adoption, that requirement is modified by regulation 9 AFER 2005. If the conditions required by section 83(5) have been met, the 3-year requirement in section 42(5) shall be replaced by a 6 months requirement. If the conditions required by section 83(5) have not been met, then the 3-year requirement is replaced by a 12 months requirement. On the facts of this case, Ms CM has entirely complied with regulation 3 (obtaining the assessment of suitability: the report from

I turn to whether TY has in fact “had his home with” the applicant for 6 months preceding the application. It is obvious on the facts that TY has not physically lived with Ms CM for the whole of the period from 29 January 2019 to 29 July 2019; they have shared a home (in two countries) for only a part of that period. Can the phrase

“had his home with” be sufficiently widely interpreted as to capture the situation which obtained here? Ms Cronin drew my attention to the analogous provisions of section 54(4)(a) of the Human Fertilisation and Embryology Act 2008 which requires that “the child’s home must be with the applicants” at the time of the application for a parental order, and to a number of authorities including: KB & RJ v RE [2016] EWHC 760 (Fam); Re Z (Foreign Surrogacy) [2015] EWFC 90; Re X (A child: Adoption No.2) [2014] EWHC 4813 (Fam); Re SL (Adoption: Home in Jurisdiction) [2004] EWHC 1283 (Fam), [2005] 1 FLR 118; Wagner & JMWL v Luxembourg

(Application 76240/01) [2007] ECHR 1213; ECC v M [2008] EWHC 332 (Fam). From the authorities to which I have been referred, I draw the following propositions:

i)

The question of where a child has his / her home is a question of fact (ECC v M at [67]):

ii)

The phrase ‘must have had his home’ has been and should be interpreted “flexibly” (KB & RJ at [41]);

iii)

A child can have his/her home with a parent notwithstanding that for extended periods the child and the parent may be in different homes, and indeed the child may be away at boarding school; important to an assessment of ‘having a home’ is whether the child and applicant have an ‘integrated’ relationship, whether the parent and child see themselves in that relationship, and the “concern and care” shown by the parent for the child (Re X (Adoption No.2) at [34] and [36]);

iv)

A child can “have his home” with the applicant even where they are

effectively in separate countries (KB & RJ at [40]);

v)

It is legitimate to consider the purpose of the requirement to have his home which is “to test the strength of the applicant's commitment to the child, and whether the 'match' between the child and the applicant is secure, those matters being assessed empirically by the need to demonstrate that the child's placement with the applicant in her 'home' has survived at least [12 months]” (Re SL at [22]);

vi)

It will be relevant to consider whether the ‘parent’ has “arranged and

provided” the home for the child (in that case, as in this, in a different country) even if not physically with the child for the whole material time (Re Z (Footnote: ⁵) at [57]);

vii)

There is a human rights aspect to consider; family life within the meaning of the European Convention on Human Rights can of course be achieved by a child with his adoptive parents (Wagner at [121]).

I should add that if the requirement for the child to ‘have his home with’ the applicant in section 42(5) is “not met”, then the person may not give notice of intention to adopt “unless he has the court’s leave to apply for an adoption order” (section 44(4)). I turn to this again briefly below (see [38]).

The power to give leave to an applicant to apply for an adoption order, where the ‘had his home’ requirement is not met, is contained in section 42(6). It is apparent that ‘leave’ may be given at any time of the proceedings including at the final hearing: see Bennett J in ASB & KBS v MQS (Secretary of State for the Home Department Intervening) [2009] EWHC 2491 (Fam) at [46], [2010] 1 FLR 748.

I discuss the first and second issues together, namely Ms CM’s failure to give notice to the Local Authority within 2 weeks of TY’s arrival in the jurisdiction, and less than 3 months prior to making the application.

I have considered with care whether I can or should allow the adoption application to proceed notwithstanding this failure of the applicant to give proper notice to the Local Authority under statute, specifically:

“… having regard to and in the light of the statutory subject matter, the background, the purpose of the requirement (if known), its importance, its relation to the general object intended to be secured by the Act, and the actual or possible impact of non-compliance on the parties.” (Munby P in Re X at [52])

The purpose of the requirement to notify the local authority within two weeks of a child’s arrival is to enable social work checks to be made, in the early days a placement in this country, to ensure that arrangements for his/her care are satisfactory; after all, the person caring for him will almost certainly not have parental responsibility, and will probably and to all intents and purposes be a private foster carer. The functions imposed on a local authority in these circumstances are, as I mentioned earlier ([19] above), set out in regulation 5 of the AFER 2005; most significant among them is the requirement for routine weekly visiting in the early days, and the offering of advice. In this case, it is obvious that the moment has passed; TY has now been in this jurisdiction for nearly nine months. Additionally, as it happens, TY was never caught by the private fostering arrangements (per Part IX Children Act 1989) as he was already 16 years old (Footnote: ⁶) when he arrived in the UK, and is in any event a relative of Ms CM. The underlying purpose of this requirement could therefore be said to have even less relevance.

The purpose of the requirement to give no less than three months’ notice of the intention to adopt is to enable the local authority to commence their investigation of the application, assess the parties, and be in a position to offer advice to the court when the matter is placed before it for directions (per section 44(5)/(6)) (see [20] above). Ms Kakonge advises me that the respondent Local Authority is now ready and able to undertake this assessment, and further submits that this assessment (in Annex A form) can be completed in less than the 12 weeks conventionally sought. She points out that the Local Authority is not starting this work with a blank canvas; as mentioned earlier ([7]) it commissioned PACT to complete an assessment of Ms CM in 2014 so much of the background investigation has been done. This assessment supported Ms CM’s application to adopt TY in Jamaica.

Parliament cannot really have intended that the application for an adoption order, with all its transformative (Footnote: ⁷) characteristics would have to fail in limine and barred forever simply because of the failure of the applicant to comply strictly with this notice requirement (or indeed the earlier notice requirement) in the legislation. An adoption order, after all,

“… has an effect extending far beyond the merely legal. It has the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences. It creates what Thorpe LJ in Re J (Adoption: Non-Patrial) [1998] INLR 424, 429, referred to as "the psychological relationship of parent and child with all its far-reaching manifestations and consequences." Moreover, these consequences are lifelong and, for all practical purposes, irreversible” (Sir James Munby P in Re X at [54])

Parliament surely intended a “sensible result” (Footnote: ⁸). To rule that the adoption application should not be permitted to proceed on the basis of this non-compliance with what appears to be a mandatory requirement would not be a “sensible result”.

Insofar as I need to find further support for this approach, it is surely to be found in one of two places:

I return to the third question posed in [4](iii) above: namely, can it be said that TY

It is clear from the authorities relied on by Ms Cronin discussed above ([24]) that the courts have taken a reasonably flexible approach to the term ‘having his home with’. It will inevitably turn on the specific facts. Relevant among those facts will be whether Ms CM and TY have an ‘integrated’ relationship, and whether they saw themselves in a parent/child relationship; I believe they did. In this regard, the court notes the “concern and care” shown by Ms CM towards TY over a number of years; it is clear that she “arranged and provided” the daily routine for TY while he lived with his ailing grandmother (see [35](vii) below).

In addition to the points raised in [34] above, on the facts of this case, and taking the whole of the six-month period into account:

Drawing the threads of [34] and [35] together, I am in the circumstances, able to conclude that in the whole of the 6 months immediately prior to the making of the application, TY did ‘have his home’ with Ms CM for the purposes of section 42 of the ACA 2002 and regulation 9 of the AFER 2005.

I must add that had I not reached this conclusion on the facts, I would have been minded to grant Ms CM permission (“leave”) to make the application exercising the wide discretionary powers available to me under section 42(6) (see [26] above). In exercising discretion, I would have had regard to:

The residual issue with which I would have had to grapple in those circumstances is how I could/should have dealt with section 44(4) ACA 2002; this plainly contemplates that no notice of intention to adopt can be given by the applicant until after ‘leave’ has been granted to the applicant to apply for an adoption order. Thus, if I were in the position of only granting ‘leave’ today, then notice would only have been given later today. This would have required a further review of the case law rehearsed at [21] above, and a determination as to whether the formal requirements could effectively be dispensed with.

As I mentioned earlier, the Local Authority has not materially opposed the outcome contended for by Ms CM. It has rightly not questioned Ms CM’s good faith, and has properly acknowledged that she was seeking to navigate these difficult waters once TY was in this country without the benefit of legal advice, and without support from the adoption agency which had assessed her. The Local Authority further indicated through counsel that on the information provided it has no reason to question that the current arrangement for TY’s care by Ms CM is meeting his needs. The Local Authority has also confirmed that it is not prejudiced or compromised in its ability to undertake its statutory assessment and investigatory functions now. By contrast, TY and Ms CM would be irremediably prejudiced if the application were not allowed to proceed.

In conclusion, I take the view that, as Sir James Munby P said in Re A & others(HFEA 2008) [2015] (see [21] above), that the opportunity for the court in this country to consider adoption for TY by Ms CM, particularly where it has been granted in another jurisdiction, should not be denied by “the triumph of form over substance”, and that I should allow the adoption application to proceed notwithstanding these instances of statutory non-compliance.

I will ask the parties to submit a draft directions order, in order to case manage the application now to a final hearing. It will be necessary for the Local Authority to undertake the Annex A (Footnote: ¹⁰) assessment and prepare a report. I shall then list the case for a final hearing.

That is my judgment.