Re H (A Minor) (Adoption: Non-Patrial)
| Jurisdiction | England & Wales |
| Judgment Date | 13 November 1995 |
| Court | Family Division |
HOLMAN, J
Adoption – application to adopt foreign national – Secretary of State opposing application – conflict between immigration policy and adoption law – principles to be applied.
The applicants were a married couple of Pakistani origin who were now British citizens. A shadow over their happy and stable marriage was that they were unable to conceive a child.
The applicants had relatives in Pakistan. These included a family of which the parents had eight children. That family enjoyed a comfortable standard of living. In 1992 the father of that family came to England for a family wedding. He brought with him one of his children, a boy born in 1980. They were given leave to stay for six months. During their stay in England the applicants asked the father if they might adopt the child. The father returned to Pakistan leaving the child with the applicants. After the father had discussed the matter with the child's mother, the parents agreed to the applicants adopting the child.
In April 1993 the applicants issued an adoption application. The Home Office opposed the application and was joined as intervenor.
Held – granting the application: Where an adoption application was opposed by the Secretary of State the court was required to adopt a two-stage approach. First, it must consider the motive for the application. If the court was satisfied that the motive for the application was not to achieve British nationality for the child but was to serve the child's general welfare the court could proceed to the second stage which was to carry out a balancing exercise between public policy and the child's welfare. It was only if the welfare considerations and any other legitimate considerations under s 6 of the Adoption Act 1976 clearly outweighed the immigration and public policy considerations that the court could make an adoption order. In the present case, so far as the first stage was concerned, the evidence led to the court being satisfied that this was a genuine adoption application motivated by the genuine advantages inherent in adoption itself. So far as the second stage was concerned, although there were powerful policy factors against making an adoption order, the welfare advantages to the child were real and significant and lasting, and they clearly outweighed the substantial considerations of immigration policy. Accordingly, an adoption order would be made.
Statutory provisions referred to:Adoption Act 1976, ss 6 and 11.
British Nationality Act 1981, s 1(5).
Children Act 1989, ss 8 and 12(2).
Immigration Rules 1993, HC251.
Statement of Changes in Immigration Rules HC395 (1994), r 314.
Cases referred to in judgment:R v Secretary of State for the Home Department (unreported) 21 April 1994.
H (A Minor) (Adoption: Non-Patrial), Re [1982] Fam 121; [1982] 3 WLR 50; [1982] 3 All ER 84.
K (Adoption: Non-Patrial), Re[1994] 2 FCR 617; [1995] Fam 38; [1994] 3 WLR 572; [1994] 3 All ER 449.
W (A Minor) (Adoption: Non-Patrial), Re [1986] Fam 54; [1985] 3 WLR 945; [1985] 3 All ER 449.
Khadim Al'Hassan for the applicants.
Richard Bond for the guardian ad litem.
Lisa Giovannetti for the Home Office.
MR JUSTICE HOLMAN. Introduction and factsIn the case of Re H (A Minor) (Adoption: Non-Patrial) [1982] Fam 121 at p 126H Hollings, J referred to "the conflict or even collision which can occur and seems bound to occur from time to time between immigration policy and procedures and adoption law and procedures". The present adoption application seems to me to provoke that conflict in a particularly acute form.
The case concerns a Muslim family who originate from Pakistan. The male applicant is Mr A. He was brought up in Pakistan but came to live in England in 1970. He became a British citizen in 1975. In 1978 he married the female applicant, Mrs A. She was also brought up in Pakistan but came to live in England shortly before their marriage. She became a British citizen in 1989. They have both clearly made England their permanent home. Their marriage is clearly a happy and stable one. They live in a nice house above their shop and are financially secure. The social worker who prepared the Schedule 2 report, describes it as an excellent house with a relaxed atmosphere. But there was one long shadow over their happiness. They were unable to conceive a child. For 14 years they tried. They underwent extensive medical investigation. Tests shows that Mr A had a low sperm count. In 1991 and 1992 they tried to conceive by IVF at a general infirmary. But a report dated February 1992 from the hospital reported that this had failed due to the low sperm density. Since there was no medical problem with the wife, the clinic discussed with them the possibility of artificial insemination by donor, but the couple felt that this was not acceptable to them. They then
investigated with the local authority the possibility of receiving a child for adoption. But the local authority told them that they might have to wait three years or more for a child with the "right" ethnic and cultural background. By then, in 1992, Mr A was already 38 and Mrs A was 36 and they were worried that soon their ages would tell against them being given a child for adoption. I am quite satisfied, having seen each of the applicants and from all that I have read about them, that they genuinely yearned to have a child whom they could call and bring up as their own.
The applicants have some relations, MZ ("the father") and ZB ("the mother") who live in Pakistan. This couple have eight children who range in age today from 26 to just under 7. S, the subject of this adoption application, is the sixth child. He was born on 22 May 1980 and so is now aged 15½. The precise blood relationship between the applicants and the father and mother and their children is not entirely clear. But it seems that the male applicant is related to the father and the female applicant related to the mother. If the family tree exhibited as "C" to the Official Solicitor's report is correct, then the male applicant is in fact a first cousin to S and the female applicant a first cousin once removed. The father is in secure employment with Pakistan International Airlines and the family live in Pakistan in circumstances which are described by Mr DJC Pickup, an entry clearance officer attached to the British High Commission in Islamabad, as "a very comfortable standard of living within the scheme of things in Pakistan". I have seen photographs of their house and land, send by Mr Pickup, and the house is indeed clean and comfortable and it has modern services and amenities. All the evidence is to the effect that the family is a happy and integrated one and that until the events which I am about to describe S was a happy and full member of that family, being well brought up, well educated and loved by his family in his home in Pakistan.
On 21 July 1992 the father came to England together with S, then of course aged just 12, and one other son and a daughter. They came for a family wedding and planned to stay for about a month, although the entry visa in S's case gave permission to remain here for six months, ie until 20 January 1993. On 6 August 1992 S began to live with the applicants and has continued to live with them ever since, now over three years. How did this come about?
The applicants say, and I accept, that most years one or other or both of them spent six or eight weeks or more in Pakistan. Whilst there they spent time with the mother and father and thus came to know their children, including S, well. At para 2 of Mr A's affidavit of 7 March 1994 he says:
"Obviously, during these visits [S] was present with other members of his family including all his brothers and sisters. However, my wife and I became very close to him and we found him to be an extremely pleasant child with a loving nature and placid temperament. He was the sort of boy we would have wished to have for our own. It would be right to say that since our first visit to him my wife and I have felt a special affinity towards [S] despite the fact that we both come from large families and have a number of cousins, nieces and nephews."
However, in cross-examination Mr A denied that until S actually started living with them there was any special "bond" between him and his wife and S. The applicants say, and in this they are supported by statements made by the father when interviewed by the Official Solicitor and the Home Office, that the question of S moving to live with them only arose after he was here for the wedding in July 1992. By then they were feeling desperate to have a child. They liked S very much, finding him to be a very nice and well behaved child (as indeed he is) and asked the father whether S might live with them and be adopted by them as their own son. There was the advantage to them that he was related to each of them and the advantage for Mrs A, who speaks little English, that S spoke Urdu like herself. The father said that he would agree to this provided the mother, who had remained in Pakistan, also agreed. Of S's own wishes and feelings in the matter the adults seem to have taken the view that, being an obedient child, he would obey whatever was decided for him, as indeed he did.
The father returned to Pakistan and on 21 October 1992 the mother and father in Pakistan each signed a document called a power of attorney which clearly contemplates that S will be adopted in England by the applicants and gives a power of attorney to Mr A's brother, Mr F, to sign any document in connexion with adoption proceedings. On 14 April...
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