Re I (Adoption Order: Nationality)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Date | 1999 |
| Year | 1999 |
| Court | Family Division |
Adoption – Children Indian nationals – Children coming to England to stay – Children’s first cousin applying to adopt them – Secretary of State opposing application on ground sham to defeat immigration controls – Whether adoption should be ordered – Adoption Act 1976, s 6.
The children, a girl of 16 and a boy of 13, were Indian nationals living in India. The husband, who was the children’s first cousin, was a British national who had been brought up in England. Following the break up of his first marriage he returned to the family home in India where he formed a close attachment to the children, who had very little contact with their own father. Upon the marriage to his second wife, the husband returned to England. Thereafter the mother’s health deteriorated and she became increasingly unable to cope with the children, who were sent to stay with the husband and his wife while the mother stayed with other relatives, also in England. Thereafter the husband and wife sought to adopt the children. The application was supported by the local authority, the Official Solicitor, the children themselves, and after initial reluctance by the mother and prolonged non-co-operation by the father, by the children’s parents. However, the Secretary of State for the Home Department opposed the application on the basis that it was a sham or a mere device to defeat immigration controls.
Held – It was clearly established that an adoption application which was no more than a device to defeat immigration controls would fail and that in such cases welfare considerations were for all practical purposes irrelevant; and that in a ‘real’ application the court had to consider, under s 6 of the Adoption Act 1976, the need to safeguard and promote the welfare of the child during its childhood (although that factor would carry less weight where little of the childhood remained). Applying those principles to the facts of the present case, it was clear that adoption offered clear and substantial advantages for the children’s welfare during their childhood quite apart from those which accrued from the acquisition of British nationality, and it was apparent that the children wanted to be adopted. Moreover, the initial reluctance of the mother and non-co-operation of the father were not characteristic of sham applications. Those considerations heavily outweighed the public interest in upholding in the present case the Secretary of State’s right to control immigration. It followed that the application for adoption would succeed.
Cases referred to in judgmentA (a minor) (adoption: non-patrial) [1996] 3 FCR 1; sub nom Re H (a minor) (adoption: non-patrial) [1996] 4 All ER 600, [1997] 1 WLR 791, CA; affg[1996] 2 FCR 597.
D (an infant) (adoption: parent’s consent), Re [1977] AC 602, [1977] 1 All ER 145, [1977] 2 WLR 79, HL; rvsg [1976] 2 All ER 342, [1976] 3 WLR 12, CA.
H (a minor) (adoption: non-patrial), Re [1982] Fam 121, [1982] 3 All ER 84, [1982] 3 WLR 501.
J (a minor) (adoption: non-patrial), Re[1998] 1 FCR 125, CA.
K (adoption: non-patrial), Re[1994] 2 FCR 617; sub nom Re K (a minor) (adoption order: nationality) [1995] Fam 38, [1994] 3 All ER 553, [1994] 3 WLR 572, CA.
W (a minor) (adoption: non-patrial), Re [1986] Fam 54, [1985] 3 All ER 449, [1985] 3 WLR 945, CA.
ApplicationThe husband and wife applied to adopt the husband’s first cousins, who were Indian nationals, and who had come to England to stay following the deterioration in their mother’s health and her increasing inability to care for them. The case was heard and judgment was given in chambers. The case is reported with the permission of Stuart-White J. The facts are set out in the judgment.
Ezekiel Pipi (instructed by Francis & Francis, Wembley) for the husband and wife.
Robin Barda (instructed by the Official Solicitor) for the guardian ad litem.
Jeremy Rosenblatt (instructed by the local authority solicitor) for the local authority.
Lisa Giovannetti (instructed by the Treasury Solicitor) for the Home Office
STUART-WHITE J.The adoption proceedings before me concern N, a girl of 16, and I, a boy of 13. They are Indian nationals and are the natural children of the father and the mother. The applicants for adoption are Mr AI and his wife Mrs FAI, who for convenience I shall call ‘the husband’ and ‘the wife’. The father and the mother have both consented to the adoption, which is supported also by the relevant local authority, the London Borough of Westminster, and by the Official Solicitor on behalf of the children. The applications are, however, opposed by the Secretary of State for Home Affairs.
The father is a brother of the husband’s father. Thus he is the husband’s paternal uncle and the children are therefore the husband’s first cousins. The family home in India is a farm in Gujarat. The head of the household, until he died in 1989, was the grandfather of both the husband and the children. The father and the mother are aged about 46 and 47 respectively. Each was born in India and lived together there after their marriage in 1972. They had five children, three boys now all grown up and married and to whom I shall refer further in a moment, and their youngest two children, the two children the subject
of the application. The husband is 37 and though he was born in India he has been brought up in England since he was five years of age and is a British national. He is a businessman and is financially secure. He married his first wife in 1981. By her he had two children, now aged 12 and 10. They live with their mother in Lancashire. It had been a religious but not a civil marriage and it was dissolved by Talak in 1989. The husband’s contact with the children of that marriage was opposed by their mother, was sporadic until 1994 and has not occurred at all since then.
During the subsistence of that marriage the mother and her five children first visited England. They stayed with the husband and his first wife, who for the first time met the children, the subject of the applications. The mother and those two, her youngest two children, returned to India in 1986 but the three older boys remained and the husband took responsibility for them. They were from time-to-time granted permission to remain in England, though there were gaps in that permission. All three were established by the husband in a newsagent’s business in Manchester where they still live now with their respective wives. The mother visited them for a short period in 1987 but after that did not see them again until she did so in 1994 in circumstances which I shall relate in a moment.
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