Re A (A Child) (Adoption: Assessment outside Jurisdiction)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall,Lord Justice Moore-Bick,Lord Justice Thorpe |
| Judgment Date | 05 February 2009 |
| Neutral Citation | [2009] EWCA Civ 41 |
| Date | 05 February 2009 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2008/1963 |
[2009] EWCA Civ 41
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE – FAMILY DIVISION
Charles J on 21st July 2008
Before: Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Moore-Bick
Case No: B4/2008/1963
FD07PO2518
Anthony Hayden QC and Ruth Cabeza (instructed by Corporate Legal Services) for the Appellant
Martin Chamberlain and Anna Burne (instructed by Treasury Solicitors) for the 1st Respondent
Malcolm Chisholm (instructed by CAFCASS Legal) for the 2 nd Respondent
Hearing date: 2nd December 2008
Lord Justice Wall:
Introduction
IA (as I shall call her) was born on 31 August 2006. She is in the care of the London Borough of Haringey (the local authority), as are her two brothers born respectively in 2002 and 2003. Her parents agree that she cannot return to live with them. However, she has a paternal uncle and aunt (Mr and Mrs N) who live in the United States of America, and who are willing to adopt her.
The local authority would like to assess Mr. and Mrs N as prospective adopters for IA. But Mr and Mrs N are unable to come to England for the 10 weeks specified in section 84(4) of the Adoption and Children Act 2002 (the 2002 Act). So as a first step, the local authority applied to the judge for his approval of its proposal to arrange for IA to live with Mr and Mrs N on an extended visit pursuant to paragraph 19 of Schedule 2 to the Children Act 1989 (the 1989 Act).
In a reserved judgment handed down on 21 July 2008 (and for specific reasons which he articulated fully and carefully) Charles J sitting in the Family Division of the High Court in London refused the local authority's application under the 1989 Act. He also declined to make a declaration sought by the local authority to the following effect, namely that:—
“there is no legal bar to the court taking into account any period spent by IA at the home of Mr and Mrs N (her paternal aunt and uncle) in the United States of America when considering whether or not Mr and Mrs N had met the condition laid out in section 84(4) of the Adoption and Children Act 2002 that 'an application for an order under this section may not be made unless at all times during the preceding ten weeks the child's home was with the applicant or, in the case of an application by two people, both of them”.
The judge also adjourned generally an application by the local authority for a placement order under section 21 of the 2002 Act in relation to IA and directed that if an application to restore it was not made by 21 July 2009, it should stand dismissed. We are not directly concerned with that part of his order on this appeal. Charles J's judgment [2008] EWHC 1722 (Fam) is now reported as Haringey London Borough Council v. MA, JN, IA at [2008] 2 FLR 1857.
The other parties to the proceedings before the judge were IA's parents (MA and JN) and her guardian (all of whom made common cause with the local authority and none of whom, as a consequence, was represented before us). However, the Department for Children Schools and Families (the Department) had been given leave to intervene by the judge, and appeared by counsel both before him and in this court. In addition to a detailed skeleton argument, the Department put in a respondent's notice, which sought to uphold the judge's order for different or additional reasons. Finally, CAFCASS Legal instructed an advocate to the court, who likewise appeared by counsel both before the judge and in this court. I am grateful to all counsel for their full and careful arguments.
Perhaps the single most important question raised by this appeal is that identified in paragraph 3 above; namely whether, in an overseas adoption, a child's “home” with prospective adopter(s) during the period of 10 weeks immediately prior to the making of an order for parental responsibility under section 84(1) of the 2002 Act has to be in England and Wales (the Department's view) or whether it can be with the prospective adopters, wherever they happen to be living (the view of the local authority). This is, by common consent, a question of statutory construction.
The facts
I can do no better than to take these from paragraphs 6 to 9 of the judge's judgment:—
6. When the care order was made (in relation to IA) 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.
7. 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.
8. 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.
9. 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.
In my judgment, the manner in which the judge analysed the position in paragraph 9 of his judgment is significant. My reasons for taking this view will, I think, become apparent when I have set out the local authority's care plan and the relevant statutory provisions. At the moment, however, I note simply that the local authority is currently acting as a local authority, not as an adoption agency. It has a care order in relation to IA, and thus shares parental responsibility for her with her parents; however, no placement order relating to IA has been made.
The local authority's care plan
The local authority's care plan, upon which the care order was made, is set out by the judge in detail in paragraph 10 of his judgment. I propose to repeat it in full.
10. The process, or steps, proposed by the local authority are as follows:
(1) 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 section 43 of the 2002 Act. 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 sections 22 and 23 of the 1989 Act and section 43 of the 2002 Act, and the most relevant Regulations are the Fostering Services Regulations 2002 (FSR 2002) and the Adoption Agencies Regulations 2005 (AAR 2005).
(2) 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 2002 Act.
(d) Pursuant to Regulation 44 of 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...
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