A v R
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Arbuthnot |
| Judgment Date | 26 November 2021 |
| Neutral Citation | [2021] EWHC 3168 (Fam) |
| Docket Number | Case No: ZC21Z00026 |
| Court | Family Division |
and
[2021] EWHC 3168 (Fam)
Mrs Justice Arbuthnot
Case No: ZC21Z00026
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF YP (DOB: 04.02.2003)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Andrew Powell (instructed by Hughes Fowler Carruthers) for the Applicant
The First Respondent appeared in person
Ms Ruth Cabeza (instructed by Dawson Cornwell) for the Second Respondent
Hearing dates: 26 th October 2021
Approved Judgment
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
The applicant “A” applies for an adoption order in respect of the second respondent “YP”, who is a Swiss national born on 4 th February 2003, he is now aged 18. The application was issued on 3 rd February 2021, the day before his 18 th birthday. The application is supported by YP's birth mother, the first respondent, whom I will call “R”, and by YP.
A is a Swiss national who has lived in London since 2017. A very successful businessman, he is now aged 88. He and R were married in 1992 and divorced in 2002. A married again and when that marriage ended in 2011, A, R and YP became a family unit. A and YP have pre-settled status in the UK. R does not.
A is the partner or close friend of YP's birth mother. R is a Swiss and Spanish national who lives in Switzerland.
YP has a birth father “X”, who was never married to R and never lived with her. X had regular monthly or every two months contact with YP. This contact has continued for years and shows that X has a long-standing commitment to his son. For no obvious reason the last contact between X and YP was in 2019; this had nothing to do with Covid nor did it relate to A's application to adopt YP.
This is, in essence, an application for a stepparent adoption order. R has parental responsibility for YP and is an automatic respondent to the proceedings.
R and YP have lived in Switzerland throughout his childhood whilst he has attended school in Switzerland. A has lived in London but he has spent time also in Switzerland where he has a flat. It appears from the statements provided by A, R and YP that the latter has spent his holidays with A either in London or travelling to various places around the world with him. Emotionally, YP considers A to be his father.
X was given notice of the proceedings and attempts have been made to contact him on a number of occasions by A's solicitors, the local authority and the Cafcass reporting officer. There was little response from him except it would appear that he opposes the application. He was given notice of the proceedings and of the hearing and also given an opportunity to intervene in these proceedings but did not respond to that invitation.
A Swiss lawyer, Alain Berger, was instructed in these proceedings to advise whether X as the birth father had parental responsibility for YP under Swiss Law. In short, the evidence is clear, the birth father does not have parental responsibility for YP and is not an automatic party to these proceedings. Mr Berger confirmed that YP's mother, R, is the only parent with parental responsibility for him. R and X, the birth father, were not married at the time of YP's birth and there had never been a legal declaration of joint custody. X's consent to the Adoption Order is therefore not required.
Ms JG, the Cafcass reporting officer, raised the question of YP's inheritance rights and the recognition of an English adoption order in Switzerland. Mr Berger confirmed in his addendum report dated 14 October 2021 that an English adoption order would be recognised in Switzerland as long as A was domiciled and was a citizen in England.
The local authority provided an Annex A, Rule 14 report written by Ms AG in which she did not support the making of an adoption order but accepted that the application was finely balanced. She was concerned about YP's loss of his relationship with the paternal family which may be occasioned by an adoption order.
After the departure of the report writer from the employment of the local authority, an addendum report was provided dated 19 th October 2021 by Ms K, where this time an adoption order was recommended.
YP was joined as a party to the proceedings on 16 March 2021 and has instructed his legal team directly. A Cafcass reporting officer had provided a report and had interviewed A, R and YP. In a report dated 10 th September 2021, she considered there were no welfare issues preventing an Adoption Order from being made.
Issues
Whether the pre-conditions for the making of an adoption order are satisfied.
A particular question is whether A is the partner of R within the definition of the Adoption and Children Act 2002 (“ACA 2002”).
A more difficult question relates to whether YP has had his “home” with A “at all times” during the six months preceding the application, 3 rd August 2020 and 3 rd February 2021. It is accepted by the parties that YP was in Switzerland during this period. The question is whether he had had his home with A during the preceding six months notwithstanding that he was in Switzerland during this time whilst A was either in Switzerland or in London. If he has not had his home at all times with A in the preceding six months, then the criterium in section 42(3) of the ACA 2002 is not met and an adoption order cannot be made.
Finally, if the pre-conditions are met, the court must consider whether it is in YP's best interests to make an adoption order.
Evidence
I had a bundle of evidence including statements from A, R and YP, two Annex A, Rule 14 reports from the local authority, statements from the expert on Swiss law and finally the report of the Cafcass reporting officer.
The statements of A, R and YP were consistent. A settled in the United Kingdom in 2017 although he had owned his flat in London for 20 years. He had pre-settled status as did YP. A also owns property in Switzerland and stays in a flat he owns there. When in Switzerland he does not live with R and YP.
A had been married to R between 1992 and 2002, but they were divorced before she had YP. A first met YP when he was aged three. A and his third wife spent increasing time with YP and R. He became a father figure to YP and is very fond of him; they spent as much time together as they could. The three of them became a family unit after his divorce from his third wife in 2011.
Their relationship was cemented through travel when YP was not attending school in Switzerland and shared interests such as stage musicals and restaurants, in particular those providing Iraqi cuisine. The family had travelled together including to Las Vegas one December, Panama over Christmas 2019 and A and YP had travelled to Israel together. They spend Christmas together almost every year although R's mother lives in Switzerland and they visit her too.
R said YP's home had “gravitated to London”. R would have spent much more time here were it not for Covid.
During the six months I am concerned with, A flew to Switzerland in July 2020 and stayed until November 2020 and spent much time with YP and R but R said “it has not been the same as our usual family routine” (D2). During the period of time when YP was not able to come to London due to Covid and school and A was back in London, A and YP were in touch a few times a week by telephone.
The plan was that YP would finish school in the summer of 2021 and then relocate to London for them to be together, in the event YP is going to university in Switzerland and will not be studying in London.
A explained that adopting YP would recognise legally their current arrangements. He treats YP as his son and provides for him financially and YP treats A as his father. YP has a special nickname for A “Youkind”. A wants to be legally responsible for YP and specifically provide for YP fully on his death.
A said YP's home life “is and has remained with me in London throughout” although what he meant by that was that during the holidays YP would stay with him either in A's flat in London or they would be travelling abroad together. YP had his own bedroom in London. A compared it to an arrangement by which a child goes off to boarding school and returns to the parents' home in the holidays.
The mother, R, explained that YP and A have a very special bond and relationship. YP will cook for A, cut his hair and even helped him shave after he had broken his shoulder.
The family have discussed the application together and are all very happy about it. They want their legal reality to reflect their social reality. A considers himself to be YP's stepfather.
A explained that his lawyers had attempted to contact YP's birth father X but received no proper response. After A's lawyers sent letters in English, X replied in French saying he did not understand English and he did not know what they wanted. French translations of the letter then were sent.
There was an implication in the first social worker, Ms AG's, Annex A, Rule 14 report that A had not mentioned the fact that he had two older...
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