Re E (scottish Adopters: English Adoption Proceedings)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 06 February 2019 |
| Neutral Citation | [2019] EWFC 9 |
| Court | Family Court |
| Docket Number | Case No: LS442/18 |
| Date | 06 February 2019 |
[2019] EWFC 9
IN THE FAMILY COURT
Royal Courts of Justice
Strand
London WC2A 2LL
THE HONOURABLE Mr Justice Cobb
Case No: LS442/18
Brett Davies (Solicitor Advocate) for the Local Authority
Laura Beevers (Solicitor from Ramsdens Solicitors) for the Children's Guardian E's parents were unrepresented
The Prospective adopters did not appear nor were they represented
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Introduction
E is 2 1/2 years old. When she was 6 months old, she was made the subject of a final Care Order ( section 31 Children Act 1989) and Placement Order ( section 18 Adoption and Children Act 2002: ‘ACA 2002’) in proceedings conducted in the Family Court in England. Some four months later, she was placed for adoption in Scotland. Her prospective adopters live in Scotland. I am satisfied on the evidence that at least one of them is domiciled in Scotland, and they have both unquestionably been habitually resident in Scotland for many years. They have previously adopted E's older full sibling; E and her sibling have established a strong and close bond.
The adopters have now applied for an adoption order in respect of E. The application is made under section 50 ACA 2002 (adoption by a couple). They have issued their adoption application in the Family Court in England. At a case management hearing, a preliminary question arose for determination – namely whether an adoption application in respect of a child placed for adoption in Scotland with Scottish adopters can be determined in England.
This judgment sets out my reasons for the conclusion that it can. I am of the view that in these circumstances, the Scottish adopters would in fact have the option of pursuing their application in either Scotland or England. I indicated this outcome to the parties at the conclusion of the case management hearing.
Discussion
Within the United Kingdom, there are, of course, three quite distinct legal jurisdictions: (i) England and Wales, (ii) Scotland, and (iii) Northern Ireland. The ACA 2002 currently contains the statutory basis for adoption in England and Wales; the Adoption and Children (Scotland) Act 2007 (‘ AC(S)A 2007’) contains the equivalent provisions in Scotland. I have annexed a table to this judgment comparing those statutory provisions of the ACA 2002 (England) and the AC(S)A 2007 (Scotland) which are relevant to the issue before me; it will be seen that they effectively mirror each other.
An adoption order is defined, in English law as:
“… an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter” (see section 46(1) ACA 2002).
It operates (per section 46(2) ACA 2002) to extinguish:
“(a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,
(b) …
(c) any order under the Children (Scotland) Act 1995 (c 36) other than an excepted order,
[(ca) any child assessment order or child protection order within the meaning given in section 202(1) of the Children's Hearing (Scotland) Act 2011,]
…”
Equivalent definitions are given in the AC(S)A 2007 at section 28(1) and section 35(2)(a) (see below).
The crucial section for determining jurisdiction in this case is section 49 ACA 2002; this provides that “[a]n application for an adoption order may be made by (a) a couple…” provided that the applicants can satisfy one of a number of pre-conditions. Of particular relevance are those conditions set out in section 49(2) and 49(3):
“(2) The first condition is that at least one of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) is domiciled in a part of the British Islands.
(3) The second condition is that both of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.” (emphasis added)”
Reference in section 49 ACA 2002 to “ British Islands” means “ the United Kingdom, the Channel Islands and the Isle of Man.” ( Interpretation Act 1978, Schedule 1, paragraph 1). It is notable that the AC(S)A 2007 has mirror provisions ( section 29(2) and section 30(6) ibid.).
It is clear, therefore, that the ACA 2002 gives the Family Court in England and Wales jurisdiction to make an adoption order in favour of applicants who satisfy one or other of the section 49 ACA 2002 criteria set out in para.[6] above. The prospective adopters in this case in fact satisfy both conditions as I indicated at para.[1] above. Indeed, they previously adopted E's sibling in a Family Court in England without issue.
It is equally clear that the AC(S)A 2007 would give the Court in Scotland jurisdiction to make an adoption order in favour of applicants who satisfy one or other of the section 29 AC(S)A 2007 criteria (in similar terms to those set out in para.[6] above). As the prospective adopters satisfy these conditions, they could therefore have issued their application in Scotland had they chosen to do so.
All of this seems clear enough. Should there be any doubt, it is dispelled, I believe, by the decision of the Court of Appeal in Re N (Children: Adoption: Jurisdiction) [2015] EWCA Civ 1112, a case in which the Court of Appeal considered “fundamentally important issues to do with the application of our domestic adoption law in cases with a foreign element” ([4]). Having reviewed the international context in which adoption orders come to be made in England and Wales, Sir James Munby P said this:
“ Adoption: the jurisdiction of the court
74. As will be appreciated, the effect of Articles 1, 1(3)(b) and 8 of BIIA is that whereas, in the case of care proceedings, the jurisdiction of the court to entertain the proceedings is determined by the provisions of BIIA, specifically Article 8, this is not so in the case of adoption or placement order proceedings under the 2002 Act. What, then, determines the jurisdiction of the court to make orders under the 2002 Act, specifically, jurisdiction to make an adoption order in accordance with the 2002 Act? And related to this, in cases involving a foreign child or a foreign parent, by reference to what system of law is the case to be decided?
75. Of its nature, an adoption involves three different parties: the child, the natural parent(s) and the adoptive parent(s). In principle, therefore, the jurisdiction of the court could be defined by reference to the circumstances (for example, nationality, domicile, habitual residence, presence within the jurisdiction) of the child, and/or the circumstances (nationality, domicile, habitual residence, presence) of the natural parent(s), and/or the circumstances (nationality, domicile, habitual residence, presence) of the adoptive parent(s).
76. Now it is true that section 42(7)(b) of the 2002 Act requires the presence of the child within the jurisdiction at some point either before or during the adoption process, a...
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