Re QS (A Minor) (Adoption: Non-Patrial)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Year | 1997 |
| Date | 1997 |
| Court | Family Division |
STUART-WHITE, J
Adoption – application to adopt foreign national – Secretary of State opposing application – balancing welfare of child with public policy – factors to be considered.
The applicant was born in Pakistan and married her husband there in 1967. Very soon after the marriage the couple came to live in England and became British citizens. The applicant and her husband always wished to have children but she was unable to conceive.
It was common in the culture to which the applicant and her family belonged for a childless couple to be given a child or children of a relative to bring up as if the child or children were their own.
In April 1990 the applicant and her husband visited Pakistan. There, the applicant's brother and his wife agreed to give her their youngest son then aged 7 months. The child went to live with the applicant and her husband and they informally, and according to custom, "adopted" him though there was no court order. In July 1990 the applicant's husband died suddenly. The applicant and the child went to live with her brother and his wife.
In September 1990 the applicant returned to England to sort out her late husband's affairs. She did not bring the child with her. She returned to Pakistan for a period from December 1991 to January 1992.
In January 1992 the applicant's brother sought entry clearance to enable him, his wife, and the (youngest) child to enter the United Kingdom. The only reason given was to visit relatives. The application was refused but the applicant's brother appealed. Two years later the appeal was allowed. Throughout this period the applicant maintained contact with the child on the basis that he was her son who would be coming to England to live with her.
In May 1994 the child came to England with his parents. They were given leave to enter as visitors. On arrival in England the child, with his parents, stayed at the applicant's house.
When entering the United Kingdom it was not made known to the entry clearance officer that the intention was that the applicant would seek to adopt the child. Home Office policy was to refuse entry for adoption unless this involved a genuine transfer of parental responsibility on the grounds of the parents' inability to care for the child and that the child would be adequately maintained and accommodated without recourse to public funds.
In July 1994 the applicant took the first steps in connexion with adoption by notifying the local authority and the Home Office. Soon after, the child's parents returned to Pakistan. The child remained with the applicant. The adoption application was made in December 1994. The child's parents agreed to the adoption. The Home Office objected to the application.
Held – dismissing the application: (1) In this case the child had become integrated and settled in the applicant's home. He regarded the applicant as his mother and wished to stay with her. The adoption order would emotionally secure his position as the applicant's son in a way which the making of no order would plainly not achieve. The applicant would be a suitable and proper carer for him and provide him with a good home. There was a risk that the return of the child to his birth family would result in his being treated as if he were not quite a full member of the family. However, by virtue of s 6 of the Adoption Act 1976 it was provided that the child's welfare was the first consideration. Thus, it outweighed any other single factor but did not outweigh all other factors. In this respect the court's approach to the welfare of the child differed from that set out in s 1 of the Children Act 1989 which made the welfare of the child paramount. A proper consideration other than welfare when a court was considering whether or not to make an adoption order included public policy and the effect of an adoption order on nationality and right of abode.
(2) When considering an adoption application in respect of a non-patrial the court must adopt a two-stage approach. First, it must consider the motive for the application only if satisfied that the true motive was not to achieve British nationality but was to serve the child's best interests should the court proceed to the second stage which was to carry out a balancing exercise between public policy and the child's welfare. On the facts, the present application did not fail at the first stage. Although there were benefits which would accrue to the child on adoption these had to be weighed against countervailing public policy considerations. The first and most important of these was the deception involved in obtaining entry to this country. Entry would not have been permitted for adoption as the circumstances conflicted with Home Office policy in two respects. First, the child's parents were entirely able to care for him so it could not be said that a transfer of parental responsibility was sought because of the parents' inability to care for the child. Second, the applicant was in receipt of social security benefits so it could not be said that the child would be maintained without recourse to public funds. In all the circumstances of this case the welfare of the child was not an overwhelming benefit and was very clearly outweighed by considerations of public policy.
Statutory provisions referred to:Adoption Act 1976, s 6.
Children Act 1975, s 3.
Children Act 1989, s 1.
Cases referred to in judgment:B (A Minor) (Adoption: Non-Patrial), Re[1995] 2 FCR 749.
H (A Minor) (Adoption: Non-Patrial), Re [1982] Fam 121; [1982] 3 WLR 50; [1982] 3 All ER 84.
H (A Minor) (Adoption: Non-Patrial), Re[1996] 2 FCR 597.
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.
Ravinder Rahal for the applicant.
Lisa Giovannetti for the Home Office.
Alistair McFarlane for the guardian ad litem.
MR JUSTICE STUART-WHITE.This is an application by Mrs B to adopt Q, a boy born on 26 September 1989 and thus now 6 years of age. He is the son of the applicant's brother and his wife. They are the first and second respondents to the
application. They have consented to the application. The Secretary of State for Home Affairs has been joined as a respondent and objects to the application. The child is represented by a guardian ad litem and the guardian ad litem recommends the making of an adoption order.
The applicant, who is 46 years old, was born in Pakistan and she married there in 1967, but she and her husband came to England very soon thereafter and became British citizens with a right to live in this country. She has additionally retained her right to live in Pakistan where she and her husband owned, and since his death in July 1990 she has continued to own, a house. She has, however, effectively lived in England now for over 25 years though, as will appear, as she has visited Pakistan on more than one occasion. Her brother and sister-in-law live in Pakistan and are Pakistani citizens, as is their son, Q. The applicant and her husband always wanted to have children, but she failed to conceive and eventually it became clear that there were medical reasons why she could not do so.
It is common in the culture to which the applicant and her family belong for a childless couple to be given the child or children of a relative to bring up as if that child or children were their own, an arrangement sharing in its effect many of the characteristics of adoption as it is understood in this country.
In the late 1980s when the applicant's medical situation became known, inquiries were made among the applicant's brothers and sisters, both those in Pakistan and those who had settled in England, to see whether any of those brothers or sisters would give a child to the applicant and her husband in the way that I have described. At first none was willing to do so.
In April 1990 the applicant and her husband travelled to Pakistan and took up residence in their own house in a village near to the border between Pakistan and Kashmir. In the same village lived Q's mother and father and their seven children of whom Q, at the age of 7 months, was then the youngest. The applicant tells me, and I accept, that of her relatives that brother and his wife were, and are, the closest to her and that when she asked if they would give her their youngest son they did not refuse. To Westerners, this sounds a strange and perhaps even a shocking state of affairs, but I accept that in the culture to which they belonged it was, if not commonplace, at least not unusual; it was acceptable and, in the sense that it showed generosity of spirit in the natural parents, was regarded as admirable; that the natural father in this case is a kindly, generous, well-meaning man, highly respected in his community, is clear from the evidence of the guardian ad...
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Re J (a minor) (adoption: non-patrial)
...[1982] 3 All ER 84, [1982] 3 WLR 501. H (a minor) (adoption: non-patrial), Re[1996] 2 FCR 597. QS (a minor) (adoption: non-patrial), Re[1997] 1 FCR 9. W (a minor) (adoption: non-patrial), Re [1986] Fam 54, [1985] 3 All ER 449, [1985] 3 WLR 945, AppealThe appellants appealed from the decisio......