E.C.C. (The Local Authority) (Applicant) SM (A Child) (by her Guardian) (1st Respondent) DC (2nd Respondent) BM (3rd Respondent) DMH (4th Respondent)
| Jurisdiction | England & Wales |
| Judgment Date | 14 July 2010 |
| Neutral Citation | [2010] EWHC 1694 (Fam) |
| Date | 14 July 2010 |
| Court | Family Division |
| Docket Number | Case No: FD09A00268 |
[2010] EWHC 1694 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Before: Mr Justice Hedley
Case No: FD09A00268
Ruth Cabeza (instructed by The Local Authority Legal Dept.) for the Applicant
Lloyd North as Solicitor Advocate (from Sparling, Benham and Brough Solicitors) for the 1 st Respondent
Deirdre Fottrell (instructed by Mr. N Priestley from Ridley and Hall Solicitors) for the 4th Respondent
Hearing dates: 28th June 2010
Approved Judgment
This judgment is being handed down in open court on 14 th July 2010. It consists of five pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
This case raises again issues relating to the placement of a child with kinship carers in the United States of America for the purposes of adoption. These are matters that have been considered by the Court of Appeal in Re A (Adoption: Removal) [2009] 2 FLR 597. That case was concerned with placement under Sections 84 and 85 of the Adoption and Children Act 2002 (as amended) with a view to adoption in the U.S.A. It considered an earlier judgment in this case ( Essex County Council v M [2008] EWHC 332) of Black J (as she then was) and pointed out an undoubted legal minefield.
However on 1 st April 2008 the U.S.A. acceded to and adopted into domestic law the Convention of 29 th May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption. The practical effect of that would be that the making of a Convention Adoption in this Country would obligate the U.S.A. to make all necessary arrangements for the admission to and residence in the U.S.A. of the adopted child. In those circumstances the local authority changed its care plan from a placement for adoption in the U.S.A. to the making of a Convention Adoption in this country with a view to subsequent permanent removal to the U.S.A.
To achieve that, however, the prospective adopters must comply with the requirements of Section 42 of the 2002 Act. The relevant provision – Section 42 (2)(a) – requires the child to live with one or both of the adopters at all times during the period of ten weeks preceding the application. The domestic and economic circumstances of the prospective adoptors preclude their setting up a temporary home in this country and the question arises as to whether that period can be spent in the U.S.A. That raises the issue as to the relationship between Section 28 (2) – (4) and Section 85 of the Act given that Section 42 admits of time being spent abroad—see Re A (above).
This is an application by the local authority for a Placement Order in respect of a child SM born on 19 th June 2003 and who is therefore 7 years of age. Her parents are DC and BM who, although not married, share parental responsibility. Neither parent is able to care for SM and neither contend otherwise. A full care order was made on 21 st February 2008. It has been the local authority's plan for a long time (and approved in principle by the court) that SM should live with her paternal uncle and aunt in the U.S.A. The reasons for the delay are to be found in the practical and legal difficulties that have been encountered and have been described in Black J's earlier judgment and acknowledged in Re A.
That approach is supported by the father although he has never formally lodged his consent. It is opposed by the mother principally on the basis of resultant contact difficulties. However, she advances no tenable alternative. As I shall explain, I am satisfied that SM's welfare will positively require me to dispense with their consent. However it is always more satisfactory both for prospective adoptors (especially where they are family members) and often for the child (when adult) to know that a placement was supported by parents. Hence the order giving the parents an opportunity to consent before the dispensing order is drawn up.
The local authority are now anxious to press on with the placement with the prospective adoptors. They have issued their application for a placement order and I have heard it. In order to decide whether such an order should be made, the court must have regards to the matters set out in Section 1 of the 2002 Act. The simple facts are these: SM is living in a non-permanent foster placement; her parents cannot care for her and thus arrangements for permanency must be made; the paternal uncle and aunt are ready and willing and have been carefully assessed as...
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S and T (Children)
...Re G (Adoption: Placement Outside Jurisdiction) [2008] EWCA Civ 105, [2008] 1 FLR 1484, para 18, and ECC (The Local Authority) v SM [2010] EWHC 1694 (Fam), [2011] 1 FLR 234, para 3. It will be noticed that the dis-application of section 44(3) of the 2002 Act by regulation 57, means that t......