Re G (A Child) (Adoption: Placement outside Jurisdiction)
| Jurisdiction | England & Wales |
| Judgment Date | 21 February 2008 |
| Neutral Citation | [2008] EWCA Civ 105 |
| Date | 21 February 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2008/0277 |
[2008] EWCA Civ 105
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM—His Honour Judge Vincent,
sitting as a judge of the High Court
on 1 February 2008
Royal Courts of Justice
Strand, London, WC2A 2LL
The President of The Family Division
Lord Justice Wall and
Lord Justice Lloyd
Case No: B4/2008/0277
Miss Eleanor Platt QC and Miss Gina Small (instructed by Messrs Coodes—Solicitors) for the Appellant
Mrs C appeared in person – Mr C did not attend – 1 st Respondent
Mr Richard Beddoe (instructed by Cornwall County Council) – for the 2 nd Respondent
Mr Rawdon Crozier (instructed by John Murray—Solicitors) for the 3 rd Respondent
Miss Helen Matuk (instructed by Ashtons – Solicitors) for the Guardians – 4 th Respondent
Sir Mark Potter P:
Introduction
This is the judgment of the court, to which each of its members has made a significant contribution.
This case was listed before us on 14 February 2008 as an application for permission to appeal against an order made by His Honour Judge Vincent, sitting as a judge of the High Court on 1 February 2008. By his order, made under section 84(1) of the Adoption and Children Act 2002 (the 2002 Act) the judge gave parental responsibility to Mr and Mrs C, the applicants in the proceedings before him in relation to a child, PG. The purpose of the order was to facilitate Mr and Mrs. C's removal of PG to the United States of America, where they intend to make an application to adopt her.
The application before us had been directed into the list by Wilson LJ on 8 February at short notice, with the appeal to follow if permission was granted. We say at once that in our judgment the application raises a point of some importance. We therefore grant permission to appeal. We regard it, however, as a case to which reporting restrictions should apply. Nothing must, accordingly, be published which identifies the child concerned, or any of the adults involved in the case, and this judgment, as will already be apparent, is written anonymously.
The facts
The appellant in this court is MM. She is aged 20 and is the mother of PG, who is a female child born on 22 July 2006. PG is thus now approximately aged 19 months. PG's father is a man whom we will call AG. He is aged 42. Both MM and AG, who are no longer living together, accept that neither is in a position to care for PG, and that it is in her best interests to be adopted. The only relevant difference between them is that AG agrees that PG should be adopted by Mr and Mrs. C in America: MM wishes her to be placed for adoption within the United Kingdom.
Care proceedings under section 31 of the Children Act 1989 were instituted in relation to PG on 3 August 2006 by a local authority, which in the interests of preserving confidentiality, we will not name. Thereafter PG remained in the interim care of that local authority, who placed her with foster parents in September of that year. On 1 August 2007, the local adoption panel recommended that she should be adopted. She was made the subject of a full care order in favour of the local authority on 25 October 2007. The recital to that order records the following: -
Upon hearing counsel for all parties
And upon the court concluding that the local authority care plan which primarily advances a case that [PG] should be placed with [Mr and Mrs C] with a view to them making an application for an order under section 84 of [the 2002 Act] should be approved
And upon the court approving an assessment plan of Mr and Mrs C for the purposes of an envisaged application by them for a section 84 order
And upon the court concluding that the requirements of section 84(4) would not be breached by such plan and in particular that the requirement that either Mr or Mrs. C should be living in a specified place or in the present of PG for any specific period of time, subject to the requirements of the assessment being fulfilled.
In addition to the care order, the local authority was granted permission pursuant to section 34(4) of the Children Act 1989 to suspend contact between PG and her birth parents. Mr and Mrs C's application under section 84 of the 2002 Act was adjourned to 1 February 2008. Other ancillary orders were made which are not material to this appeal. The plan thus was and remains that PG will be adopted by Mr and Mrs. C in America.
Mrs C is AG's sister. Albeit that the two are estranged, the plan has the advantage for PG that she will – despite being adopted—remain within the care of her wider paternal family. All the evidence (both in this country and in the United States of America) points to the fact that Mr and Mrs C are, in every way, suitable as adoptive parents for PG, and they have so been assessed both in this country and in the United States. The evidence is also clear that it is in PG's best interests to be adopted by Mr and Mrs C.
Mr. C is an American citizen: Mrs. C, who was born in England, is both a British and an American citizen. They live in the State of Illinois. It follows, in English law, that in order to be able lawfully to remove PG from England and Wales to Illinois in order to adopt her in Illinois, Mr and Mrs C have to obtain an order under section 84(1) of the 2002 Act. Such an order vests parental responsibility in them to the exclusion of all others:—see section 84(5) of the 2002 Act. On 1 February 2008, Judge Vincent made such an order, and it is this order which is challenged by MM on this appeal.
The preamble to the order made by the judge on 1 February 2008 states that the court was satisfied that Mr and Mrs C intended to adopt PG under the law of the United States of America. The schedule to the order identifies Mr and Mrs. C as the applicants for the order, and PG as the child born to MM and AG. Under the heading: Conditions for adoption, the following was recorded: -
The court confirms that one of the conditions (appropriate to this case) as set out at section 47(2) and (4) of (the 2002 Act), as amended by the Adoptions with a Foreign Element Regulations 2005 has been met and an order under section 84(1) may therefore be made in respect of the child.
The statutory framework for taking children out of the United Kingdom prior to adoption abroad
Both in the 2002 Act and in The Adoptions with a Foreign Element Regulations 2005 (henceforth “the Regulations”) Parliament has set out what has to be done before a child can be taken abroad for the purposes of being adopted in a foreign country. Applying those provisions to the facts of the instant case, section 85(1) of the 2002 Act provides that a child in PG's situation must not be removed from the United Kingdom to Illinois unless Mr and Mrs C have parental responsibility for her under section 84 of the Act. In this appeal, we are thus concerned with that section of the 2002 Act, and also with paragraph 10(b) of the Regulations. The former reads as follows: -
84 Giving parental responsibility prior to adoption abroad
(1) The High Court may, on an application by persons who the court is satisfied intend to adopt a child under the law of a country or territory outside the British Islands, make an order giving parental responsibility for the child to them.
(2) An order under this section may not give parental responsibility to persons who the court is satisfied meet those requirements as to domicile, or habitual residence, in England and Wales which have to be met if an adoption order is to be made in favour of those persons.
(3) An order under this section may not be made unless any requirements prescribed by regulations are satisfied.
(4) 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.
(5) Section 46(2) to (4) has effect in relation to an order under this section as it has effect in relation to adoption orders.
(6) Regulations may provide for any provision of this Act which refers to adoption orders to apply, with or without modifications, to orders under this section.
(7) In this section, “regulations” means regulations made by the Secretary of State, after consultation with the Assembly.
We do not think it necessary to set out section 46(2) to (4) or section 47(2) and (4) of the 2002 Act. The former deals with the effects of adoption orders made in England and Wales, and provides that such orders extinguish the parental responsibility previously held by any person other than the prospective adopters. As we have already pointed out, the effect of an order under section 84 is the same: it extinguishes the parental responsibility previously held by PG's birth parents as well as that conferred on the local authority by the care order pursuant to section 33(3) of the Children Act 1989.
Section 47(2) and (4) of the 2002 Act sets out the conditions for the making of a domestic adoption order. As applied to the instant case, it provides that parental consent to the making of an adoption order has been dispensed with by the court, and that PG has been placed with Mr and Mrs. C for adoption by an adoption agency. Both conditions are satisfied in the instant case.
We do, however, think it worthwhile noting that section 84(4) appears to be the counterpart of section 42(1) and (2) of the 2002 Act which applies to domestic adoptions, and which read: -
42 Child to live with adopters before application...
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