R v Secretary of State for the Home Department ex parte Khan
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PARKER,LORD JUSTICE WATKINS,LORD JUSTICE DUNN |
| Judgment Date | 04 April 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0404-4 |
| Docket Number | 84/0219 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 April 1984 |
[1984] EWCA Civ J0404-4
Lord Justice Dunn
Lord Justice Watkins
and
Lord Justice Parker
84/0219
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (DIVISIONAL COURT)
(Mr. Justice Stephen Brown)
Royal Courts of Justice
MR. M. KNOTT (instructed by Messrs Siefert, Sedley & Co.) appeared on behalf of the Appellant/Applicant.
MR. D. LATHAM (instructed by the Treasury Solicitor) appeared on behalf of the Respondent/Respondent.
The appellant, Asif Mahmood Khan, is by birth a citizen of Pakistan. He is settled in this country having been given indefinite leave to remain, notwithstanding his original illegal entry in October 1972, under an amnesty of 28th February 1975. His wife was given indefinite leave to remain on her arrival in February 1976. He and his wife have been married for some six years and have been informed that for medical reasons they are incapable of having a child of their own. They desire to adopt one Shehzad who was born in Pakistan on 10th October 1978 and is thus some 5 1/2 years of age. He is the third and youngest child of the appellant's brother and sister-in-law.
In the Autumn of 1981 the appellant, whose brother and sister-in-law were willing for their child to be adopted, went to the Dalston Advice Bureau to seek advice about the procedure for adoption. He was there handed a letter issued by the Home Office explaining the system.
That letter is the foundation of the appellant's case and it is necessary to set out certain parts of it. It begins:
"Dear…..
Thank you for your letter of………; the following information may be of help to you."
It is clearly a letter used by the Home Office to answer enquiries from those such as the appellant and supplied to Advice Bureaux so that they may use it when enquiries are made of them. The letter then continues:
"There is no provision in the Immigration Rules for a child to be brought to the United Kingdom for adoption. The Home Secretary may, however, exercise his discretion and exceptionally allow a child to be brought here for adoption where he is satisfied that the intention to adopt under United Kingdom law is genuine and not merely a device for gaining entry; that the child's welfare in this country is assured; and that the court here is likely to grant an adoption order. It is also necessary for one of the intending adopters to be domiciled here."
Anyone reading this paragraph would have no difficulty in understanding that a child could not be brought in for adoption under the Immigration Rules and that if a child was to be allowed in for such purpose it would only be at the discretion of the Home Secretary and in exceptional cases. Such cases would arise only where the Home Secretary was satisfied of the four matters specified, namely:
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(1) That there was a genuine intention to adopt.
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(2) That the child's welfare in this country was assured.
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(3) That the Court here would be likely to grant an adoption order.
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(4) That one of the intending adopters was domiciled here.
The paragraph does not say that on the Home Secretary being satisfied of such four matters the child will be allowed in, although a reader might well infer that this would be the likely result.
In the following paragraph the seriousness of adoption is pointed out. It is unnecessary to set it out but the next paragraph thereafter is of importance. It reads:
"It is particularly important that the adoption law in this country, which is designed to safeguard the interests of the child and the natural parents and to ensure that the intending adopters are suitable persons to adopt a particular child, is fully satisfied. Also, the law specifically requires that in reaching any decision relating to the adoption of a child, a court must give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood. Because the welfare of a child is at stake, the Department concerned must be satisfied that there are no apparent reasons why a court would refuse to grant an adoption order. They have therefore devised the following procedure which is designed to act as a safeguard for everyone concerned."
This paragraph is clearly in amplification of the third of the requirements mentioned in the first paragraph. It rightly stresses that the welfare of the child is the paramount consideration for the court when considering whether to make an adoption order.
The devised procedure is in two parts, the first relating to steps to be taken in the country in which the prospective adoptee is living. That first part reads as follows:
"The procedure is for the representatives of the intending adopters in the country where the child is living to apply to the nearest British Government representative for an entry clearance for the child to come here. He will require the documentation and information outlined in Appendix 1 attached to this letter. He will also need to ascertain the child's wishes and feelings having regard to his age and understanding and to see evidence that the child's parents or guardians fully understand what is involved and unconditionally agree to the child coming to the United Kingdom for adoption. He will also be required to confirm that the relevant authorities in the child's present country of residence do not object to the proposal. Further he will be required to prepare, attest and certify documents confirming the information he has given and in some cases will need to translate original documents. The intending adopters will be charged consular fees for this service, which may be substantial."
The appellant did not appoint representatives to carry out his part of this phase of the procedure, but himself went to the Immigration Section at the Islamabad Embassy to apply for an entry clearance for the child to come to this country. There the necessary documentation was completed. It is important to note that the letter does not state that the Government representative will require to be satisfied that the original parents are incapable of caring for the child, merely that he will require evidence that they fully understand what is involved and unconditionally agree to the child coming to the United Kingdom for adoption. It is also important to note that there is nothing in Appendix 1 to the letter which seeks information as to whether the parents are or are not capable of looking after the child.
The entry clearance officer at Islamabad, having interviewed the appellant, the natural mother and the child on 22nd October 1981, sent a report with the necessary documentation attached to the Home Office on 11th November 1981. No complaint is made about that report. It includes certain statements which must be mentioned. They are:
a) that the Appellant had stated that the child lived with his mother two brothers and paternal grandparents in the grandparents' brick built modern house with electricity and water on tap and the family enjoyed a good standard of living, the natural father remitting funds from Iran.
b) that although legal adoption was not permitted in Pakistan it was not unknown for parents to hand over children to childless close relatives and that this was certainly such a case.
c) that the application was made for the benefit of the childless sponsors rather than the child, which enjoyed a comfortable standard of living in Pakistan.
The appellant, having been told that his application for entry clearance would be referred to the Home Office, returned to this country on 7th November 1981 and waited.
I now return to the Home Office letter which sets out, or purports to set out what would happen when the entry clearance application was referred to them. It is in the following terms:
"When the application is referred to this Department for decision we will require the intending adopters to give an undertaking that as soon as the child arrives here they will inform the Social Services Department of their local authority of their intention to apply to the court for an adoption order. They must also give an undertaking that they will take financial responsibility for the child, including the cost of repatriating the child if for any reason this becomes necessary, for example, the child is not adopted by them. A suitable form specifying the undertakings is attached at Appendix 2. We will then ask the Department of Health and Social Security (or in the case of intending adopters living in Northern Ireland, Scotland or Wales, the relevant Department there) if there are any apparent reasons why a court would refuse to grant an adoption order. The relevant Department will then arrange for appropriate enquiries to be made through the intending adopters' local authority social services department, establish that a suitable home is being offered and ensure that the placement would be in the interests of the child's welfare. It may, in some cases, instigate enquiries into the child's background through a social work agency operating in his country of residence.
It is emphasised that these enquiries are necessary to safeguard both the child's and public interest and are likely to be protracted. It is therefore important that the application for the entry clearance is made as soon as details of the child are known. It is also important that intending adopters do not make arrangements to travel to collect the child or for his journey here or enter any commitments with regard to the child, until they have been informed by this Department that the entry clearance has been authorised."
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