Re B (A Minor) (Adoption Application)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Family Division |
WALL, J
Adoption – child from The Gambia – parents agreeing to informal placement in England with prospective adopters – application to adopt the child in England – parents agreeing to adoption then changing their minds – parents having loving suitable home for the child in The Gambia – confusion between parties as to nature and effect of "adoption" – whether adoption order should be made.
The child was 4 years old. She had been born in The Gambia. Her parents were both Gambian and lived in The Gambia. The prospective adopters lived in Buckinghamshire. The child had been living with them since May 1993. The child had initially been brought to England with the parents consent, for a "long holiday" of up to six months duration.
In 1992 the prospective adopters had been on holiday to The Gambia. They had met and made friends with the parents. After the prospective adopters returned to England letters and telephone calls were exchanged. In February 1993 the prospective adopters went to The Gambia again and renewed their friendship. During the course of that holiday there had been discussions about the possibility of the child spending a period of three to six months in England. The offer to spend a "long holiday" in England was accepted. Matters were arranged, and the child was given leave by the Home Office to remain in the United Kingdom until November 1993.
When the child had been in the United Kingdom for just under 10 weeks the prospective adopters wrote to the parents suggesting that, if they were still agreeable to the child remaining in Britain in the long-term, they, the prospective adopters, would like to adopt her. It was proposed that the child would still see the parents. The parents wrote back agreeing that the child should be adopted. In September, the prospective adopters asked the immigration authorities to extend the child's leave to remain, on the basis that there had been an agreement to adopt the child in England. In January 1994 this application was refused on the basis that the adoption order was only pending. Later in January the prospective adopters made their application to a county court. Forms were sent to the parents, who returned them saying that they did not wish to oppose the application and they did wish to be heard on whether or not an order was made. A guardian ad litem was appointed.
The guardian ad litem engaged in correspondence and telephone calls to the parents. The father felt that he would agree to the adoption if the child could keep her name and religion, and if the parents could have contact with her. He also wished the child to return to The Gambia at the age of 16. The solicitors acting for the prospective adopters wrote to the parents setting out a side agreement providing for the parents to have contact, and
to receive information about the child. The forms provided to indicate parental consent, however, stated that if an adoption order was made the parents would have no right to see the child. This was in flat contradiction to the side agreement. The parents signed the forms.
The guardian ad litem had been continuing to have discussions with the parents. In the course of the discussion the father indicated his agreement to the adoption. The mother seemed to be ambivalent, but then also indicated her consent. The guardian ad litem indicated that she was left with a sense of profound unease. She felt that the parents were confusing the English concept of adoption with African traditional adoption – a form of long-term fostering. It was arranged for her to go to The Gambia.
In July 1994 the social worker making the Schedule 2 inquiries under the Adoption Rules 1984 sent part of the documentation to social services in The Gambia for inquiries to be completed there. The director of social services for The Gambia had a meeting with the father. It was indicated to him that arranging for the child to be adopted abroad was a breach of the Gambian Adoption Act 1992. Shortly after that the parents withdrew their consent to the adoption. In August 1994 the parents wrote a letter to that effect to the county court. The proceedings were then transferred to the High Court. The child had lived with the prospective adopters for 18 months and had developed a strong bond. It was argued that the breaking of that bond would cause such harm to the child that it outweighed the benefits of being brought up by her parents in her native country.
Held – (1) The situation in this case had been brought about by a series of misunderstandings between the prospective adopters and the parents. Both were loving and competent, and committed to acting in the best interests of the child. In approaching the case the court had to apply the test set out in s 6 of the Adoption Act 1976, namely that the welfare of the child was the first consideration. It might have been thought that the reference to "any question with respect to the upbringing of a child" in s 1 of the Children Act 1989 included adoption. However, the Children Act had its basis in the concept of parental responsibility, and regulating its exercise. Adoption, on the other hand, extinguished any parental responsibility. This put it in a special place in the canon of family proceedings. Therefore, the "paramountcy" principle of s 1 of the Children Act did not apply. The court was thus entitled to consider matters other than welfare, including the status of adoption in The Gambia, questions of immigration status and public policy, and the social consequences to the child. The court had first to ask itself whether or not an adoption order should be made having regard to all the circumstances, and giving first consideration to the need to safeguard and promote the child's welfare. As far as practicable, the child's wishes had to be obtained. If the court reached a decision that an order was appropriate the court had to determine whether or not the parents were unreasonably withholding their consent. If the adoption application fell to be dismissed the court had then to consider whether it was appropriate to make a residence order in favour of the prospective adopters. The parents, in other circumstances, might have made an application for an order under s 8 of the Children Act. That "parentage" factor ought to be given the same weight in the adoption application as in an application under s 8. It would ordinarily be in the child's interests to be brought up by his natural parents. However, that fell to be displaced when the child's welfare required it. The weight to be attached to "heritage" or "birthright" would vary from case to case.
(2) In Gambian terms the parents were highly advantaged. The father had spent four years at Bristol University and was an exceptionally highly educated member of the Gambian community. The parents were loving and competent. They had an entirely appropriate home for the child. Furthermore, fostering arrangements within the extended family were common in Africa. It was clear that the parents regarded the question of the child remaining with the prospective adopters in a similar light. The original agreement had undoubtedly been perceived by the parents as an appropriate exercise of their parental responsibility. There
was no basis in either law or morality whereby the court could properly deprive the parents of their parental responsibility. The court was satisfied that adoption in the English sense was unacceptable to the parents. Neither was it in the child's interests for her parents' parental responsibility to be extinguished. The two parents were devoted to the child and wished to care for her in their home, which was in every way suitable. The court was in no doubt that the child's welfare required her return to The Gambia. The court was satisfied that this could be done without lasting damage, despite the attachment she had formed with the prospective adopters. There was a danger that the child might lose her sense of identity in cultural terms if she were to be adopted in England. Further, the concept of adoption was inapt to embrace to the conditions and the contact order proposed in this case. Finally, the adoption would be contrary to public policy in that it was plain that the primary objective of an adoption order would be to secure British nationality for the child. It would therefore be wrong to make an adoption order in this case.
In order to ensure that the child's welfare was entrusted to the court, and that the parties acted under the direction of the various professionals involved, the child would be made a ward of court pending her return to The Gambia.
Per curiam (1) In the circumstances of this case the parents had not been unreasonable withholding their consent. It had been submitted that the vacillation of the parents in signing the forms, and their co-operation in placing the child in England entitled the court to conclude that they were unreasonable. The court felt that the circumstances in which the parents came to sign the forms meant that no reliance could be safely placed on that fact. Equally the court was satisfied that the misunderstandings over the concept of adoption provided a defence to any question of unreasonableness based on their participation in the child's placement in England.
(2) Both the welfare arguments and the expert evidence were against the making of a residence order in favour of the prospective adopters. It could not be guaranteed that the immigration department would grant the child permanent leave to remain. Furthermore, the child would be exposed to the prospect of continuing litigation in the form of applications under the Children Act. It could not possibly be said that it was in the child's interests to make a residence order in favour of the prospective adopters.
Statutory provisions referred to:Adoption Act 1976, ss 6, 12(1), 16 and Sch 2.
Adoption Act of The Gambia 1992, s 6(4).
Children Act 1989, ss 1(1) and (3), 2, 8 and 33(3).
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