FAS v Bradford Metropolitan District Council (1st Respondent) Secretary of State for the Home Department (2nd Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 13 March 2015 |
| Neutral Citation | [2015] EWHC 622 (Fam) |
| Date | 13 March 2015 |
| Court | Family Division |
| Docket Number | Case No: BD12Z01801 |
[2015] EWHC 622 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Leeds Civil Hearing Centre
Coverdale House, LS1 2BH
Mr Justice Mostyn
Case No: BD12Z01801
and
Mr Rudd (instructed by Atkinson & Firth Solicitors) for the Applicant
Ms Tai (instructed by Bradford Legal Services) for the 1st Respondent
Mr Greatorex (instructed by Treasury Solicitors) for the 2nd Respondent
Hearing dates: 4 & 5 March 2015
This is my judgment on the application by FAS to adopt her first cousin once removed, MW. The application is dated 6 November 2011 and seeks a convention adoption order, which is misconceived as Pakistan, MW's homeland, is not a party to the Hague Convention of 29 May 1993 on the Protection of Children and Co-operation in respect of Inter-country Adoption. It has therefore been treated as an application for a mainstream adoption and on 27 January 2014 Holman J granted leave under section 42(6) Adoption and Children Act 2002 ("ACA") for the adoption application to proceed.
FAS is 44 years old. Her father and MW's paternal grandmother were siblings. She was born in the UK and has British citizenship. She is married but has been separated from her husband for seven years. She has two adult sons with whom she lives in Bradford.
MW was born on 18 November 1996 in Pakistan and is therefore 18 years old and legally an adult. The adoption application was made before his 18 th birthday, as it had to be – see section 49(4) ACA. However, an adoption order may not be made after MW's 19 th birthday – see section 47(9). An effect of an adoption order would be to grant British Citizenship to MW – see section 1(5) British Nationality Act 1981.
It is not clear why Parliament has allowed an adoption order to be made in respect of a person who is legally an adult for all purposes. It represents a break with the past. Section 1(1) of the Adoption Act 1958 confined an adoption order to an "infant" and an infant was defined by section 57(1) as a person who had not attained the then legal age of majority of 21 (provided that he or she had not been married). The Adoption Act 1976 was to the same effect, save that by section 72(1) the age was reduced, in line with the legal age of majority, to 18. I suppose that this curious alteration in the 2002 Act was to align adoption law with child benefit and child support where payments can be made, or ordered to be made, for a "child" over the age of 18 who is in full time education (in the case of child support potentially up to the "child's" 20 th birthday). At all events it is, as I say, extremely curious as the effect of an adoption order, as is well known, is to give "parental responsibility for a child to the adopters" (see section 46(1)) and to extinguish the parental responsibility of the natural parents (section 46(2)(a)), which are literally impossible concepts when the adopted person is not a child but is an adult.
MW's mother is SW and his father is MWA. He is the fourth of five children. He has two elder brothers, an elder sister and a younger sister. His parents are separated. On separation the girls went to live with SW and the boys with MWA. His sisters live with their mother in the village of Panjeri, Bhimber District, which is in Kashmir in Pakistan. SW's address derives from a form of consent to adoption which was sent both to the court and to FAS about which I will have more to say later. The whereabouts of MWA and of MW's brothers are said to be unknown, although it is almost certain that they are all in Pakistan. However, in the visa application, to which I refer below, MW gives his address as Panjeri village, and so it seems probable that both parents after separation were living in the same place.
On 18 June 2012 MWA made an application for UK entry clearance for a visa for him and MW to make a family visit to the UK. The application for MW, which was made on his behalf by his father, stated that:
i) The purpose of the visit was a "family visit" for six weeks.
ii) He would travel to the UK on 22 July 2012 and leave on 7 September 2012.
iii) His address was Panjeri village, where he was living with his father.
iv) When in the UK he would be staying with ZK in Bradford.
v) A family relative in the UK is QHS who lives in Bradford.
Nothing is known about ZK, other than his address and the fact that he works for HMRC. QHS is in fact FAS's brother but she told me that they fell out years ago and do not speak to each other.
Visitors' visas for father and son were issued on 3 July 2012 and were valid until 3 January 2013.
MW and his father in fact arrived in the UK on 15 September 2012. As I will explain, MW has lived permanently with FAS and her sons in Bradford since 20 October 2012. He did not return to Pakistan by 3 January 2013 and is therefore an unlawful overstayer.
It is of note that on 9 December 2011 an office copy of MW's birth certificate was bespoken, presumably by his father, from the secretary of the Union Council in Panjeri. This office copy, the original of which is on the court file, was brought by MWA to the UK for the "family visit". It later accompanied FAS's adoption application of 6 November 2012.
It is probable that MWA brought MW here for the purposes of adoption, as there can be no other reason why he bespoke and brought with him an office copy of MW's birth certificate. By section 83(4) and (5) ACA and the Adoption with a Foreign Elements Regulations 2005 ( SI 2005 No. 392) strict conditions are imposed where such a course is proposed and it is a criminal offence under section 83(7) if a child is brought in for adoption in breach of those conditions. However, there is insufficient evidence to fix FAS with culpable participation in that plan even if there are aspects of the evidence which are highly questionable and suspicious, as I shall explain.
Each of FAS and MW have prepared a "home made" witness statement. There are two identical versions of each on the court file with the dates 11 November 2013 and 10 December 2013. In her statement FAS explained that during a visit to Pakistan by her late father in 2001 he (her father) agreed with his sister, MW's grandmother, that he would adopt MW given the unhappy condition of the marriage of MW's parents. She stated:
"In connection (sic), I also confirm that in September 2012 I learned that MW came to England with his father. I managed to acquire a contact number of MW's father through a family friend and arranged to meet him. I met MW and his father at a family dinner gathering and insisted that he should honour and fulfil the concealed promise between my father and his late mother and invited MW and his father around (sic) my home."
On 17 December 2013 FAS made a formal witness statement. Here her account of the meeting and how it came about was different. At paras 14 and 15 she stated:
"In September 2012 I learned through the community that MW had come to England with his father. I arranged to travel over to Nelson in Lancashire where MW and his father were staying and we had dinner together.
Having met MW and his father again I invited them to my home in Bradford and when they came to see me I asked MW if he would like to live with me. He has stayed with me from October 2012 to date."
In her oral evidence a yet further version of events was given by FAS. She told me that she had been invited to a dinner in Lancashire. She stated
"When I got to the dinner party I discovered MWA and MW. It was a complete surprise."
Her oral evidence was that there was no discussion about adoption on that occasion but that she invited father and son to her house for dinner.
The oral evidence of FAS is that MWA and MW came to her house in Bradford for dinner on about 13 October 2012. On that occasion she said to MW, as a joke, "you are going to stay with me". Surprisingly, this dinner is not mentioned in either of FAS's witness statements, nor in MW's, although he (MW) does say that after the Lancashire gathering his father did ask whether he would consider living with FAS as part of her family. This apparently shocked him (MW) greatly. He stated "my whole world started to collapse around me".
FAS is consistent in her three accounts that MW was left with her on a permanent basis on 20 October 2012. On that occasion MW was delivered not only with his passport but with the office copy of his birth certificate also.
Just over two weeks later on 6 November 2012 FAS attended at the office of her then solicitors Ashwells Law LLP. There the application form seeking a convention adoption was filled in on her behalf by her solicitor Mr Iskar Khan. MWA also attended the office. A consent to adoption in the prescribed form was signed by him and witnessed by Mr Iskar Khan. That consent is not valid as Regulation 20 of the Adoption Agencies Regulations 2005 (SI 2005 No. 389) requires an adoption consent executed in England to be witnessed by a Cafcass officer. The consent was affixed to the application form and the whole thing, together with the birth certificate, was filed at the Bradford County Court the following day from where it was formally issued on 13 November 2012.
On 12 November 2012 the then unissued application was placed before District Judge Lingard who ordered that by 20 November 2012 FAS was to file a statement explaining (a) how MW came to be placed with her, (b) MW's immigration status, (c) how long MW has been in the UK and (d) why there was no consent from MW's mother.
On 19 November 2012 FAS wrote a letter in response to this order. There is no doubt that this letter was drafted by IK, a friend of FAS, who is computer literate. The letter is written in Times New Roman 12 point font, with...
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