Re C (Minors) (Wardship: Adoption)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,SIR DENYS BUCKLEY |
| Judgment Date | 04 October 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J1004-2 |
| Docket Number | 88/0768 No. WG 813 of 1987 |
| Court | Court of Appeal (Civil Division) |
| Date | 04 October 1988 |
[1988] EWCA Civ J1004-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(HIS HONOUR JUDGE AGLIONBY, sitting as a Judge of the High Court)
Royal Courts of Justice.
Lord Justice Purchas
and
Sir Denys Buckley
88/0768
No. WG 213 of 1986
No. WG 813 of 1987
MISS CAROLINE BUDDEN (instructed by Mr. W.G. Hopkins, County Solicitor, Kent County Council) appeared on behalf of the (Plaintiff) Respondent.
MISS J. ADELE WILLIAMS (instructed by Messrs. E.A. Morling & Sons of Maidstone) appeared on behalf of the (First Defendant) Appellant.
The appellant in this case is the mother. She appeals from an order of His Honour Judge Aglionby, sitting as a High Court judge in wardship, made on the 8th September, 1988. The first respondents to the appeal are the Kent County Council (to whom I shall refer as "the council"). There is before the court not only the notice of appeal but a respondent's notice by which the council challenge part of the judge's order.
The wards involved are Sara [C], who was born on the 16th November, 1985, and Julie [C], who was born on the 1st January, 1987. They were made wards of court on the council's originating summons as plaintiff, dated the 28th February, 1987. The defendants to that summons were the mother, the father, and the maternal grandparents, a Mr. and Mrs. [S]. Apart from the mother, the other defendants have taken no part in this appeal.
The history can be shortly stated. The parents are still very young. They had a stormy marriage with a number of breakdowns, but it finally broke down in August 1988. It is, however, quite apparent that serious difficulties affecting the children had arisen before that causing the council to issue the summons, to which I have referred, in the February of the previous year. There is an elder daughter who at all material has been living with the maternal grandparents, and the court is not concerned with her.
Sara and Julie have been in the care of the council, who placed them with foster parents, granting access to the family—i.e. the mother, the father and the maternal grandparents.
On the 15th January the summons came before Mr. Justice Wood. He made the following interim orders. There were two orders, one in respect of each of the wards, which are in the same terms. It was ordered that each of the children should remain a ward of court during her minority or until further order; that they should be committed to the care of the council under section 7(2) of the Family Law Reform Act; that the council should have leave to place each of the wards with long term foster parents with a view to adoption; and that there should be one more period of access by the first, second, third and fourth defendants—i.e. the mother, father and the maternal grandparents—within the following four weeks and thereafter there should be no more access to any member of the family. Leave was given to persons named as the prospective adopters—i.e. the persons referred to in the earlier part of the order, unidentified—to issue adoption proceedings in the county court. Apart from costs, the final provision in each order was that the matter should be brought back to court if adoption proceedings had not been issued within nine months.
The whole purpose and tenor of those orders is quite clear. There was to be a final separation between the family and the two wards and that the council should proceed in proper order to achieve the adoption of these two young girls.
The history of the matter did not turn out as envisaged. As a result of a summons, to which I must come in a moment, the main wardship issues will once again be before the court on the 10th October of this year—that is, next Monday.
After the orders had been made by Mr. Justice Wood, the council set about looking for suitable adopters. Whilst they were doing this, they were contacted by a paternal great-uncle of the wards, Mr. [H], and his wife, who gave to the council every appearance of being suitable adopters. They are domiciled in Queensland, Australia, and have had no contact with the wards although each of them originated in this country.
The mother, who had accepted the orders of Mr. Justice Wood in the sense that she made no appeal against them, which meant that her contact with the two children would be determined, now objects to an adoption in Australia on two grounds. The first is that the children will be brought up as Australians, and the second is that she objects to the influence, however remote, of her husband's family in their upbringing. Those are matters with which this court is not concerned and are clearly matters which, if appropriate, will be considered on the restored hearing of the summons.
Becoming aware of the interest of the paternal great-uncle and his wife (to whom I shall for convenience refer to as "the prospective adopters"), the council issued summonses in respect of both wards. On the 11th August they issued summonses in equivalent terms to this effect: "…to show cause why an order should not be made that the Plaintiff do have leave to remove the above-named minor from the jurisdiction and place the said minor with [the prospective adopters] both of [an address in Queensland] to the intent that the said [prospective adopters] should adopt the said minor in Australia." So that was a straight-forward summons in the wardship proceedings in each case.
Five days later, however, the council issued two more summonses. These sought in each case the following:
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"1. [A declaration] that for the purposes of the Adoption Act 1976 'relative' includes a great uncle.
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2. Alternatively that [the proposed adopters] be appointed guardians to the above named Minor[s].
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3. That the Plaintiff"—i.e. the council—"do have leave to place the [minors] with the [prospective adopters]"—and these words are important—"within the jurisdiction as foster parents pending the hearing of the Plaintiff's summons herein dated 11 August 1988."
There is also an application for leave to apply for passports and visas for Australia.
That summons on its face only sought interim relief pending the hearing of the main summons. Although the perspective may have been distorted by the passage of time, the return date for the second summons was the 8th September whereas, of course, the return date for the earlier summons is next month. So the period for this order to run was about a month.
The summonses, we have been told, very properly were issued because the council were anxious not to offend against the provisions of the Adoption Act relating to adoption by persons not domiciled in this country, and it is convenient at this stage to refer shortly to the relevant provisions of that Act. Section 55 deals with the adoption of children abroad, and reads as follows:
"(1) Where on an application made in relation to a child by a person who is not domiciled in England and Wales or Scotland an authorised court is satisfied that he intends to adopt the child under the law of or within the country in which the applicant is domiciled, the court may, subject to the following provisions of this section, make an order vesting in him the parental rights and duties relating to the child.
(2) The provisions of Part II relating to adoption Orders"—except for the various section there enumerated which are not relevant—"shall apply in relation to orders under this section as they apply in relation to adoption orders subject to the modification that in section 13(1) for '19' and '13' there are substituted '32' and '26' respectively."
Those two periods of time, which are both extended, relate to periods of time over which the child should have resided with the prospective adopter.
I need not refer to subsections (3) and (4) of section 55. I pass to section 56 which deals with the restriction on removal of children for adoption outside Great Britain. Subsection (1) provides:
"Except under the authority of an order under section 55…it shall not be lawful for any person to take or send a child who is a British subject or a citizen of the Republic of Ireland out of Greant Britain to any place outside the British Islands with...
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