FAS v Secretary of State for the Home Department (First Respondent) Bradford Metropolitan District Council (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lady Justice Macur DBE,Lord Justice Briggs |
| Judgment Date | 05 October 2015 |
| Neutral Citation | [2015] EWCA Civ 951 |
| Docket Number | Case No: B4/2015/1112 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 October 2015 |
[2015] EWCA Civ 951
Lord Justice Briggs
Lady Justice Macur DBE
and
Lord Justice Sales
Case No: B4/2015/1112
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Leeds District Registry
Family Division,
Mr Justice Mostyn
BD12Z01801
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Matthew Rudd (instructed by Atkinson & Firth Solicitors) for the Appellant
Mr Paul Greatorex (instructed by Government Legal Department) for the First Respondent
The Second Respondent was not represented
As Approved by the Cou
Introduction
This is an appeal by FAS against the judgment of Mostyn J – [2015] EWHC 622 (Fam)— in which he refused an application to make an adoption order in respect of MW, a young person now aged 18 of Pakistani nationality, by which FAS would become his adoptive mother. FAS is MW's first cousin once removed, who is a British citizen. The judge arrived at this result on the basis of his interpretation of section 1 of the Adoption and Children Act 2002 ("the 2002 Act"). The Secretary of State for the Home Department has an interest in the case because she maintains that the making of the adoption order which is sought would have the effect of improperly subverting immigration controls and would be wrong in principle where the sole benefit which MW is intended to gain from the arrangement is the acquisition of British citizenship through the operation of section 1(5) of the British Nationality Act 1981 ("the 1981 Act"). The Secretary of State succeeded on this argument before the judge. FAS now appeals to this court.
On the appeal, the Secretary of State also takes, without objection, a point of law not raised below, which is that even if an adoption order were made its effect in the circumstances of MW's case would not be to confer British citizenship upon MW pursuant to section 1(5) of the 1981 Act. Accordingly, it is said, even if FAS is correct regarding the proper interpretation of section 1 of the 2002 Act, there would still be no proper basis for making an adoption order in this case.
The legal framework
Section 1 of the Adoption and Children Act 2002 provides in relevant part as follows:
" 1. Considerations applying to the exercise of powers
(1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(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) 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.
…
(6) In coming to a decision relating to the adoption of a child, a 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."
Section 49(4) and (5) makes special provision in the context of the 2002 Act regarding the time at which an application for an adoption order should be made and when such an order may be issued by the court, to allow for the effluxion of time while the adoption proceedings in court are ongoing, as follows:
"(4) An application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.
(5) References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as "child to be adopted" or "adopted child") include a person who has attained the age of 18 years before the proceedings are concluded."
Section 47(9) of the 2002 Act provides that "An adoption order may not be made in relation to a person who has attained the age of 19 years." This meant that, in view of MW's age, the hearing of this appeal was treated as an urgent matter and expedition was ordered.
Section 1 of the 2002 Act replaced section 6 of the Adoption Act 1976 ("the 1976 Act"), which provided as follows:
"In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood, and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
It was this provision which was construed and applied by the House of Lords in a case which is relevant on this appeal, Re B (A Minor) (Adoption Order; Nationality) [1999] 2 AC 136 (" Re B"). Two differences between section 6 of the 1976 Act and section 1 of the 2002 Act may be noted: (i) the "first consideration" of the need to safeguard and promote the welfare of the child in the 1976 Act has become "the paramount consideration" being the child's welfare in the 2002 Act; and (ii) the period in relation to which the welfare of the child is to be a "first" or "paramount" consideration has changed from "throughout his childhood" in the 1976 Act to "throughout his life" in the 2002 Act. The first change strengthens the weight to be given to the child's interests in relation to the relevant period in respect of which the obligation to give such weight applies. It is the second change which is important on this appeal.
Section 1(5) and (5A) of the British Nationality Act 1981 provides as follows:
"(5) Where—
(a) any court in the United Kingdom or, on or after the appointed day, any court in a qualifying territory makes an order authorising the adoption of a minor who is not a British citizen; or
(b) a minor who is not a British citizen is adopted under a Convention adoption effected under the law of a country or territory outside the United Kingdom,
that minor shall, if the requirements of subsection (5A) are met, be a British citizen as from the date on which the order is made or the Convention adoption is effected, as the case may be.
(5A) Those requirements are that on the date on which the order is made or the Convention adoption is effected (as the case may be)—
(a) the adopter or, in the case of a joint adoption, one of the adopters is a British citizen; and
(b) in a case within subsection (5)(b), the adopter or, in the case of a joint adoption, both of the adopters are habitually resident in the United Kingdom or in a designated territory."
Section 50(1) of the 1981 Act provides that, unless the context otherwise requires, for the purposes of the 1981 Act "minor" means "a person who has not attained the age of eighteen years." It is not suggested that there is anything in the context to displace this definition. The special definition of "child" set out in section 49(5) of the 2002 Act does not modify the meaning of the different concept, "minor", which is expressly defined in the 1981 Act. This means that for a person to acquire British citizenship by operation of section 1(5) of the 1981 Act, an adoption order must be made by the court while he is a minor, i.e. a person who has not yet attained the age of 18. This is contrary to the assumption made by the judge in this case (at [3]), without the benefit of argument on the point, that if he made an adoption order in relation to MW on the application of FAS the effect of section 1(5) of the 1981 Act would be to confer British citizenship on MW.
The facts
MW was born in Pakistan on 18 November 1996. He was brought up in Pakistan. His parents are separated.
FAS is 44 years old. Her father and MW's paternal grandfather were siblings. FAS was born in the UK and has British citizenship. She has been separated from her husband for seven years. She has two adult sons with whom she lives in Bradford.
On 18 June 2012 MW's father, MWA, made an application for entry clearance for a visa for him and MW to make a family visit to the United Kingdom for six weeks commencing in September 2012. FAS was not mentioned in the application.
The judge found that in fact MWA brought MW to the UK for the purposes of adoption: [11]. By section 83(4) and (5) of the 2002 Act, taken with the Adoption with a Foreign...
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