Re AW (Adoption Application)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Year | 1992 |
| Court | Family Division |
BRACEWELL, J
Adoption – breaches of statutory provisions – arrangements and placement of adoption otherwise than through adoption agency – payments made for adoption arrangements – whether court would authorize breaches retrospectively.
Adoption – public policy – applicants knowingly acting illegally and deceitfully – delaying proceedings in order to let a status quo develop – balancing welfare and public policy considerations – interim order appropriate to secure welfare of child.
Costs – adoption application – Official Solicitor appointed as amicus curiae – whether order for Official Solicitor's costs should be made.
The applicants for an adoption order were a husband and wife aged 62 and 60 respectively. In 1981 they were granted an adoption order in respect of a child now aged 11. That child had been placed with the applicants under a private arrangement which at that time was not prohibited. In 1982 the law was amended and it was provided that a person other than an adoption agency should not make arrangements for adoption of a child unless the proposed adopter was a relative of the child or he was acting in pursuance of an order of the High Court. During 1987 the applicants let it be known amongst friends and acquaintances that they wished to adopt a second child. They did not go to an adoption agency as they knew they would not be accepted as suitable applicants by reason of their age, health, marital difficulties, and the alcoholism of the husband. They also knew that it would be illegal if a child were to be privately placed with them in the United Kingdom. They learned of an expectant mother who did not wish to keep her child after birth and intended to place it for adoption. They therefore planned a campaign to outwit the authorities. They arranged through intermediaries for the expectant mother to go and stay with a married couple in Germany, "the German husband and wife". The mother had no connexion with that country and the sole objective was for the child to be born abroad. The applicants gave £1,000 to one of the intermediaries for the mother's expenses in Germany and other expenses were incurred in Germany.
On 10 September 1987 the mother gave birth to the child in Germany. She subsequently gave her agreement to adoption. The child remained in the care of the German couple for a month. On 12 October 1987 the male applicant went to Germany. He returned with the child and the German wife who continued to care for the child for a period until the child became accustomed to the female applicant. Although they knew they were under an obligation to do so, the applicants did not inform the local authority that they were caring for the child. During 1988 the local authority learned that the child was living with the applicants and inquiries were made. In response the applicants deliberately misled the local authority. However, although the
local authority had insufficient information to be able to be satisfied as to the position of the child, they failed to take any effective action. They allowed the situation to drift until 1 March 1989. A case conference was then held. It was decided to give the applicants three months to apply for an adoption order and, if they failed to do so, the local authority would ward the child. The local authority failed to ensure that the applicants adhered to that timetable and the situation was allowed to drift still further.
The applicants eventually filed their adoption application in April 1990. By that time the child had been in their care for 2½ years. The applicants then deliberately caused further delays. In the autumn of 1991 the applicants separated for several weeks. Also at that time the male applicant was admitted to hospital for detoxification. Throughout, the applicants failed to inform the social worker involved and the guardian ad litem of the true situation within the family.
By the time the adoption application came on for hearing, the child had been with the applicants for over three years. It was common ground that the child should not be removed from the applicants and the issue was as to her future status within the applicants' family.
Held – (1) Under s 29(1) of the Adoption Act 1958 (replaced from 1 January 1988 by s 11 of the Adoption Act 1976), a person other than an adoption agency should not make arrangements for the adoption of a child, or place a child for adoption, unless (a) the proposed adopter was a relative of the child, or (b) he was acting in pursuance of an order of the High Court. Although that statutory provision did not have extraterritorial effect (Re Adoption Application AA 113/67 [1988] FCR 723), the applicants had breached it by making an agreement with the mother in England that upon the child's birth she would hand over the child with a view to adoption. Further, the placement of the child took place in England as the child had remained in the care of the German wife until she was handed over to the applicants in England.
Per curiam: Even if the child was placed with one of the proposed adopters outside England, a placement with the other adopter in England would be in breach of s 29 of the 1958 Act (s 11 of the 1976 Act): see Re Adoption Application AA 113/67 [1988] FCR 723 at p 726G; but cf Re GD (Adoption Application)[1992] 1 FCR 433 at p 444G.
(2) Breaches of s 29(1) of the 1958 Act (s 11(1) of the 1976 Act) went to the heart of the case and amounted to a bar to adoption unless authorized by the High Court. By s 9 of the Children Act 1975 (now s 13 of the Adoption Act 1976) it was provided by subs (1), inter alia, that where the child was placed by an adoption agency or in pursuance of an order of the High Court, an adoption order should not be made unless the child was at least 19 weeks old and had had his home with the applicants for the preceding 13 weeks; and by subs (2) that where subs (1) did not apply, an adoption order should not be made unless the child was at least 12 months old and during the preceding 12 months had had his home with the applicants. This provision did not create a by-pass round the breach so as to avoid the necessity of authorization to enable an adoption order to be made. The provision operated only if authorization was granted.
Re ZHH (Adoption Application)[1992] 1 FCR 197 and observations of Hollings, J in Re GD (Adoption Application)[1992] 1 FCR 433 at p 444H not followed.
(3) Payments in connexion with the adoption of a child were illegal unless authorized by the court: see s 50(1) and (3) of the Adoption Act 1958 (now s 57(1) and (3) of the Adoption Act 1976), and the court could authorize payments retrospectively. By s 22(5) of the Children Act 1975 (now s 24(2) of the 1976 Act), the court should not make an adoption order unless satisfied that no such illegal payment had been made. Section 50 of the 1958 Act (s 57 of the 1976 Act) did not have extraterritorial effect: cf Re Adoption Application AA 113/67 [1988] FCR 723 and Re GD (Adoption Application)[1992] 1 FCR 433. In the present case, the £1,000 paid by the applicants for the mother's expenses in Germany was given to an
acquaintance in England and was in breach of the statutory provision. A commercial or profit motive was irrelevant to whether a breach of the statutory provision had been committed: see Re Adoption Application AA 113/67 [1988] FCR 723. Adoption Application No AA212/86 (Surrogacy) [1987] FCR 161 not followed. Whether the payment was to reimburse hospital expenses for the delivery or, at the other end of the scale, to commercially traffic and buy a child, such payment was unlawful. But the nature and purpose of the payment was relevant, and might be crucial, to whether authorization should subsequently be given by the court.
Per curiam: Payments for home study reports or lawyer's fees did not breach s 50(1) of the 1958 Act (s 57(1) of the 1976 Act). Otherwise, it would follow that every fee for a home study report for an overseas application in accordance with the Department of Health procedure was unlawful; likewise the lawyer's fees or medical fees: cf Re GD (Adoption Application)[1992] 1 FCR 433.
(4) Whether the court should grant dispensation for the breaches of the statutory provisions prohibiting private arrangements and placements and the making of payments, involved balancing public policy on the one hand and the welfare of the child on the other. By s 6 of the Adoption Act 1976 the court was required to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood. In this case, the welfare of the child demanded that she stay with the applicants. The welfare factors in favour of adoption were that the child was settled in the only home she knew, she was receiving a good standard of care, and was loved by the applicants who would be sensitive to the nature of adoption in regard to the child as they had been in respect of the child they adopted in 1981. Welfare factors which gave cause for concern were the applicants' lack of frankness and their manipulation up to date; tensions within their marriage; the husband's drinking habits; the age and health of the applicants; the possibility of a crisis erupting in the family; the failure of the applicants to consider the child's welfare when they took her into their care, putting their own needs ahead of those of the child; and the lack of parental dialogue between the applicants about the children. The public policy considerations involved serious breaches of the statutory provisions and, in particular, the breach of the provision prohibiting private arrangements for adoption. The applicants knew they were acting illegally, failed to inform the local authority when they received the child, deliberately delayed the proceedings in order to let a status quo develop, and were deceitful as to their health and marital stability. The child's placement was designed to circumvent the statutory provisions with...
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