Haringey London Borough Council v MA
| Jurisdiction | England & Wales |
| Judgment Date | 21 July 2008 |
| Neutral Citation | [2008] EWHC 1722 (Fam) |
| Date | 21 July 2008 |
| Court | Family Division |
| Docket Number | Case No: FD07P02518 |
[2008] EWHC 1722 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE THE HONOURABLE MR JUSTICE CHARLES
Case No: FD07P02518
Judgment Approved by the court for handing down
(subject to editorial corrections)
Hearing dates: 5 and 23 June 2008
Charles J:
Introduction
This case raises points that have been the subject of earlier decisions of the courts relating to the adoption of a child by a member of his or her family who live abroad. The earlier cases demonstrate that problems arise from the provisions of the Adoption and Children Act 2002 (the ACA 2002). They are problems of statutory construction and application.
A possible answer to the points of statutory construction and application that exist is that the inhibitions to a child being adopted by a family member who lives abroad exist unless and until regulations are made. This is why I joined the Department to these proceedings. I am grateful to its representatives for providing helpful submissions at short notice.
I have also had the benefit of detailed oral and written submissions from the local authority and an Advocate to the Court, instructed by CAFCASS, as well as from the parents, for which I am grateful.
The statutory puzzle arises from the interplay of a number of statutory provisions and regulations in particular:
i) The criminal offence created and defined by s. 85 (1), (2) and (3) of the ACA 2002. It is drawn in wide terms by ss. (1) and (3).
ii) The interpretation and application of Paragraph 19 of Schedule 2 to the Children Act 1989 (as amended by the ACA 2002).
iii) The interpretation and application (in the light of cases on earlier legislation and the relevant Regulations) of s. 84 of the ACA 2002.
iv) Sections 18, 42, 43 and 44 of the ACA 2002.
v) The Regulations referred to below and the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption.
The most relevant earlier decisions are H County Council v B [2005] EWHC 3437 (Fam), Re G (A Child) [2008] EWCA Civ 105, Re A (Adoption: Placement Outside the Jurisdiction) [2004] 2 FLR 337, A London Borough v M [2006] EWHC 1907 (Fam) and ECC v M [2008] EWHC 332 (Fam) and the cases referred to in it, and Plymouth CC v CR and others (Case number PL04CO1033).
Some background
The child was born in August 2006 and is therefore approaching her second birthday. When the care order was made in January 2007 the plan was for adoption. The family put forward several family members as potential adopters and the only ones considered viable are a paternal uncle and aunt who live in the USA (Mr and Mrs N) with their five children. If the child is not adopted by them she would have to be placed outside the family. It is thought that it would be relatively easy to find appropriate non-family adopters for her in this country. A tension therefore arises between the potential advantages of a family placement and the time table for the child.
The prospects of it being concluded that the child's welfare would be best promoted throughout her childhood by her being adopted by Mr and Mrs N are thought to be good. However the local authority is of the opinion, in my view correctly, that at present it does not have sufficient information to reach a properly informed view on this.
Naturally the local authority do not wish to continue the process of investigating whether such an adoption should be supported if this cannot be done lawfully and/or practically having regard to the legal requirements and the child's time table.
As will be apparent from what I have said some investigations have been carried out by the local authority and its counterpart in the USA. These form the basis for the view of the local authority, which I share, that on welfare grounds the possibility of the child being adopted by Mr and Mrs N in the USA should be further investigated and assessed.
The approach of, and the relief sought by, the Local Authority and some comment
The process, or steps, proposed by the local authority are as follows:
i) Step 1
a) Mrs N travels to the United Kingdom for introductions and to observe the child's routine in her current foster placement. Mrs N and her husband are presented to the fostering panel as foster carers for the child. (If this does not occur before the child travels, she will initially be placed under Regulation 38 of the Fostering Services Regulations 2002 (FSR 2002)).
b) The child travels to the USA with Mrs N, her present foster carer and social worker for a holiday placement with Mrs N and her family. Further introductions take place with the family and the child within 1–2 weeks, after which the present foster carer will return. The social worker will remain for a period of 4 weeks and then return to England.
c) The child remains with the N family for a maximum 90 days (as permitted by a temporary visitor visa to the USA).
d) Whilst in the USA the social worker will commence assessment pursuant to Regulation 31(2)(d) of the Adoption Agencies Regulations 2005 (AAR 2005) and s 43 ACA 2002. A Looked After Child (LAC) Review will take place four weeks after the child is so placed with the N family in the USA.
e) So at this stage the most relevant statutory provisions are ss. 22 and 23 of the Children Act and s. 43 ACA 2002, and the most relevant Regulations are the Fostering Services Regulations 2002 (FSR 2002) and the Adoption Agencies Regulations 2005 (AAR 2005).
ii) Step 2
a) The social worker sends the 'adoption placement report' pursuant to Regulation 31(2)(d) AAR 2005 to Mrs N and her family 10 working days in advance of the proposed Adoption and Permanency Panel. The social worker completes the child's permanency report (to include a summary of possibilities for placement of the child within this country) and an assessment of whether adoption by Mr and Mrs N is in the child's best interests pursuant to Regulation 38 of the Adoption with a Foreign Element Regulations 2005 (AFER 2005).
b) The child returns to England. If the report favours adoption by Mr and Mrs N they come with her for approval as adoptive parents and matching with the child. Mr N would be unable to stay for longer than approximately two weeks due to his work commitments, but Mrs N (and her youngest child) could stay longer. The four older children would not be able to come here for any longer than Mr N, if they could come at all.
c) If it is then thought necessary and appropriate the local authority will pursue its adjourned application for a placement order pursuant to Section 18 of the ACA 2002.
d) Pursuant to Regulation 44 AFER 2005 the local authority's Adoption and Permanency Panel will consider the following documents: Article 15 report received from USA authority; the local authority's observations on that report; the child's permanency report; other such documents as required by Regulation 17(2) of the AAR 2005.
e) At this stage the most relevant statutory provisions are again ss. 22 and 23 Children Act and s. 43 of the ACA 2002, and the most relevant Regulations are the Fostering Services Regulations 2002 (FSR 2002), the Adoption Agencies Regulations 2005 (AAR 2005) and the Adoption with a Foreign Element Regulations 2005 (AFER 2005). The Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is also relevant.
iii) Step 3
a) If panel recommends approval and matching, the local authority will notify the Department of Health (Reg 40 AFER 2005) and will prepare a report in accordance with Article 16 (Reg 46 AFER 2005) to forward to the Department of Health as the relevant Central Authority. The local authority will also provide details to the Department of Health in respect of any placement order or consent provided by the birth parents.
b) Mrs N will provide written confirmation that she will travel with the child to the USA (Regulation 48(f) AFER 2005) and will request permission to travel with the child without her husband (the consent of both Central Authorities is required).
c) The Department of Health will consider whether the appropriate steps have been met and if it agrees with the placement will refer the case to the Central Authority in the USA.
d) Regulation 47 AFER 2005 sets out the requirements to take place before the child is placed for adoption including a requirement that the Central Authority in the USA will authorise the child to enter and reside permanently in the USA.
e) Until such time as the requirements of Regulation 47 AFER 2005 are met and authority to place under the ACA 2002 is obtained, the child's placement with Mrs N remains under the fostering regulations.
f) If and when those requirements are met and that authority is obtained (by court order or parental consent) the placement will become a placement for adoption.
g) At this stage the most relevant regulations are again the Adoption Agencies Regulations 2005 (AAR 2005) and the Adoption with a Foreign Element Regulations 2005 (“AFER 2005”). Again the Hague Convention on Protection of Children and Co-operation in respect of Intercountry Adoption is relevant.
iv) Step 4
a) Mrs N and her husband will apply under s. 84 of the ACA 2002 for parental responsibility. Regulation 48 of AFER 2005 applies.
b) If that is granted the local authority will arrange for good bye visits for the child and her...
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