Re K (A Minor) (Adoption order: Nationality)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE HOBHOUSE,LORD JUSTICE NEILL |
| Judgment Date | 22 April 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0422-2 |
| Docket Number | FAFMI 93/1497/F |
| Court | Court of Appeal (Civil Division) |
| Date | 22 April 1994 |
[1994] EWCA Civ J0422-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr. Justice Connell)
Before: Lord Justice Neill Lord Justice Balcombe Lord Justice Hobhouse
FAFMI 93/1497/F
MR. N. GARNHAM (Instructed by the Treasury Solicitor) appeared on behalf of the Appellant
MR. L. CRAWFORD [MR. J. KENDALL 22??4] (Instructed by Messrs. McHale & co. Cheapside) appeared on behalf of the Respondent
MR. J. POSNANSKY QC (Instructed by the Official Solicitor) appeared on behalf of Amicus curiae
( )
This appeal by the Secretary of State for the Home Department is against an Order made by Connell, J. on 15 September 1993 whereby he ordered that the applicant Deborah Haffner (who is a British citizen) do adopt the child Rashidatu Kargbo. The effect of that order was, by section 1(5) of the British Nationality Act 1981, to confer on Rashidatu (who is now 18) British nationality, which is why the Secretary of State was a party to the proceedings —see In re W (A Minor) [1986] Fam. 54.
Before I consider the substantive issues on the appeal there is a preliminary point of some difficulty. Section 1(6) of the British Nationality Act 1981 provides as follows:-
"Where an order in consequence of which any person became a British citizen by virtue of subsection (5) ceases to have effect, whether on annulment or otherwise, the cesser shall not affect the status of that person as a British citizen."
If the effect of section 1(6) is that, notwithstanding that this appeal were allowed and the adoption order set aside, Rashidatu would still remain a British citizen, then this appeal would be academic, since it is only the issue of nationality which concerns the appellant. In those circumstances the court would not entertain the appeal —see Sun Life Assurance Co. of Canada v. Jervis [1944] A.C. 111; Ainsbury v. Millington [1987] 1 W.L.R. 379.
The discharge of an order on appeal is not an annulment of the order, since acts done under the order are lawful if done before the appeal —see, e.g. Hillgate House Ltd. v. Expert Clothing and Sales Ltd. [1987] 1 E.G.L.R. 65. However, it is clearly possible to say that an adoption order ceases to have effect, otherwise than on annulment, if it is discharged on appeal. I would be most reluctant to be forced to a conclusion that, by the use of the words "or otherwise" in section 1(6), Parliament had effectively abrogated the right of the Secretary of State, a party to the adoption proceedings, to appeal against the adoption order.
The earlier history of sub-sections (5) and (6) of section 1 of the British Nationality act 1981 is of little or no help in resolving this question. They replace section 40 of the Adoption Act 1976 which provided as follows:-
" 40. Citizenship. (1) Where an adoption order is made in relation to a child who is not a citizen of the United Kingdom and Colonies, but the adopter or, in the case of a joint adoption, the adoptive father is a citizen of the United Kingdom and Colonies, the child shall be a citizen of the United Kingdom and Colonies as from the date of the adoption.
(2) In subsection (1) the reference to an adoption order includes a reference to an order authorising the adoption of a child in Scotland, Northern Ireland, the Isle of Man or in any of the Channel Islands.
(3) Where a Convention adoption order, or a specified order ceases to have effect, either on annulment or otherwise, the cesser shall not affect the status as a citizen of the United Kingdom and Colonies of any person who, by virtue of this section or section 19 of the Adoption Act 1958, became such a citizen in consequence of the order."
A Convention adoption order is defined by section 17 of the Adoption Act 1976. The Convention is the 1965 Hague Convention relating to the adoption of children, which seeks to ease and simplify the application for, and recognition of, adoption orders granted in respect of applicants and children who are nationals or habitual residents of different countries in which the convention is in force. One of the conditions for the making of a convention adoption order is that the applicant or applicants and the child must not all be United Kingdom nationals living in British territory —see section 17(3). A "specified order" is defined by section 72 (1) of the 1976 Act as meaning any provision for the adoption of a child effected under enactments similar to sections 12(1) and 17 in force in any British territory outside the United Kingdom. Thus it will be apparent that section 40(3) related only to specific types of adoption order, and not to adoption orders generally. This limitation appears to derive from section 9(5) of the Adoption Act 1968 as amended by paras. 63 and 64 of Schedule 3 to the Children Act 1975, whereas section 40(1) of the 1976 Act is derived from section 19(1) of the Adoption Act 1958 which is in turn derived from section 16(1) of the Adoption Act 1950.
Section 53 of the Adoption Act 1976 makes specific provision for the annulment of an adoption effected by a Convention adoption order, and for certain specified orders ceasing to have effect, and it may be that it was to the operation of this section that section 40(3) was directed.
However section 1(6) of the British Nationality Act 1981 is not in terms limited to convention adoption orders or specified order, so that whatever may have been the reason lying behind the earlier limitation, it would no longer appear to have any relevance.
Counsel were unable to help us with any material to show what was the mischief which might explain the difference between section 40(3) of the 1976 Act and section 1(5) of the 1981 Act.
So I am forced back to first principles. In my judgment the right of a party to proceedings to be entitled to appeal against an order made in those proceedings is so fundamental a right that I would expect Parliament to have used express language if it intended to abrogate or limit that right. I cannot believe that Parliament intended, by the use of the general words in section 1(6), to deny the Secretary of State any effective right of appeal against an adoption order made in proceedings to which he was a party. In my judgment the type of order which is contemplated by section 1(6) is an order made subsequently to the adoption proceedings —as, for example, under section 53 of the 1976 Act —and not an order made on appeal in the adoption proceedings themselves. Accordingly, we should entertain this appeal and, if the Secretary of State succeeds on the appeal, this will affect Rashidatu's status as a British citizen.
So I turn to the facts of this case.
Rashidatu was born in Sierra Leone on 23 September 1975. Her father, who was not married to her mother, has played no part in her life. She lived with her mother and her half-brother, who is seven years older than her, in Freetown, Sierra Leone.
The applicant is the mother's sister, i.e. Rashidatu's maternal aunt. The applicant was herself born in Sierra Leone in 1940, came to the United Kingdom in 1960 and qualified as an S.R.N. in 1963. She married in England in 1965, travelled abroad with her husband, but came back to live permanently in this country in 1976. Her marriage was dissolved in 1985; in 1986 she became a British citizen and she and the three daughters of her marriage all live in England. The two elder daughters have their own households; the younger daughter (Josephine, aged 19) lives with the applicant at her home in Twickenham.
Rashidatu's mother became ill in 1985 and some time later she asked the applicant to look after her children if she should die. She died of tuberculosis in Sierra Leone on 19 December 1988; Rashidatu was then aged 13.
In 1989 the applicant invited Rashidatu to visit her in England and an application was made for an entry visa for Rashidatu. That application was refused on 12 July 1989.
In 1989 adoption was introduced for the first time into the law of Sierra Leone. The applicant then applied to adopt Rashidatu in Sierra Leone and an adoption order was made by the High Court of Sierra Leone on 12 June 1991. That order is not recognised in this jurisdiction.
On 13 June 1991 Rashidatu sought entry clearance to the United Kingdom from the British Consulate in Freetown. An air ticket was purchased on her behalf for travel to London. However, when Rashidatu's passport was collected from the Consulate no entry clearance had been granted. On 19 July 1991 Rashidatu, then aged 15, flew to Heathrow. She was refused entry because she had no entry clearance. She was, however, granted temporary admission to the United Kingdom under paragraph 21 of Schedule 2 to the Immigration Act 1971 and went to live with the applicant and her cousin Josephine at their home in Twickenham. She has lived there to this day.
In October 1992 the applicant issued her application to adopt Rashidatu. The Official Solicitor was appointed as guardian ad litem for Rashidatu. He filed a report supporting the application. A report covering the matters referred to in Schedule 2 to the Adoption Rules 1984 was filed by the relevant local authority, which also supported the application. The Secretary of State was joined as a party to the proceedings in June 1993 and he was the only person who opposed the application when the matter came before Connell, J. on 15 September 1993. On that day Rashidatu was only 8 days short of her 18th birthday, when she would cease to be a child and hence eligible for adoption —see sections 6, 12 and 72 of the Adoption Act 1976; In re D (Adoption Order: Validity) ...
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