Re W (A Minor) (Adoption: Non-Patrial)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 24 July 1985 |
| Judgment citation (vLex) | [1985] EWCA Civ J0724-5 |
| Docket Number | 85/0408 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 July 1985 |
[1985] EWCA Civ J0724-5
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TAUNTON COUNTY COURT
(HIS HONOUR JUDGE KENNETH WILCOCK, Q.C.)
Royal Courts of Justice.
Lord Justice Parker
and
Lord Justice Balcombe
85/0408
LORD MESTON (instructed by Messrs. Broomhead & Saul) appeared on behalf of the Appellant.
MR. CHRISTOPHER SYMONS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent Home Secretary.
This is the judgment of the court. William W was born in China on the 15th February, 1968. His parents were Chinese, his father a doctor, his mother a nurse; William was the younger of their two children. In August 1974 the family moved to Hong Kong. In March 1977 William's father died, aged 45. William's father's early death caused considerable financial hardship to his mother, and the family was supported by funds sent to them by William's paternal aunt, Miss Linda W ("the aunt").
The aunt, who was born in 1930, came to England in May 1970, having obtained the necessary permissions for that purpose. After two years working for a commercial firm, since January 1972 she has worked in a clerical position in the Ministry of Agriculture, Fisheries and Food, by whom she is still employed. On the 15th September, 1975 the aunt was registered as a British citizen.
In May 1978 the aunt approached her Member of Parliament with a view to applying for an entry permit for William to come to live with her in England. In the course of her letter to her M.P. she said:
"If I am not allowed to apply for my nephew, could I be allowed to adopt him as my own child and bring him here?"
She was advised of the necessity for William to make a formal application for a visa in Hong Kong, but at that stage the matter was not pursued.
However, in 1981 an application was made on William's behalf to the Department of Immigration, Hong Kong, for a student entry visa to enable him to attend an independent school near to his aunt's home in England. A report to the Home Office from the Hong Kong immigration authorities stated that, when asked about his future plans, William had said he wished to take "A" levels and higher education and then be an electronic engineer in Hong Kong. William was granted a student entry visa, and on the 11th October, 1981 he arrived in the United Kingdom and was granted leave to enter as a student for 12 months. That leave has from time to time been extended and the current position is that William has leave to remain in this country to pursue his studies until the 30th September, 1985. We were told that William has proved a diligent student and has already attained two "O" levels; he awaits the results of eight more "O" levels and hopes in due course to pass on to "A" levels and a university education. So pleased is his school with his progress that they have offered to remit one-third of his fees over the next two years. In the circumstances we can see no reason why his leave should not be further extended to enable him to pursue his studies in accordance with paragraph 107 of the Statement of Changes in Immigration Rules 1983 ("HC 169").
Whilst in this country William has lived with the aunt. In the same household live the aunt's sister (i.e. another paternal aunt of William) and her husband who, until their recent retirement from business, also helped pay for William's schooling.
William has maintained limited contact, mainly by letter, with his mother. In 1984 William's mother went to Canada to nurse an elderly Chinese couple in Vancouver. William's elder sister remained in Hong Kong and is shortly to be married. In the result William now has no home to go back to, in Hong Kong or elsewhere, and his home for the last 4 1/2 years has been with the aunt in England.
On the 6th July, 1984 the aunt made an application in the county court to adopt William. William's mother has formally consented to the application and his sister, his only other close relative, is aware of the application and is not opposed to it. William himself (now aged 17) supports the application. A social worker with the county council was appointed William's guardian ad litem and he has written a full report strongly supporting the proposed adoption.
Unfortunately the aunt's solicitors do not appear to have known of the decision of Mr. Justice Hollings in In re H (A Minor) (Adoption: Non Patrial) [1982] Fam. 121, so that they did not follow the procedure indicated by the learned judge (see page 135 A-C) of giving notice to the Secretary of State where the adoption of a foreign national is proposed, so that he is given the opportunity of intervening if he wishes. If the Home Office had been notified of the aunt's application, they would undoubtedly have applied to have been added as a respondent under rule 15 (3) of the Adoption Rules 1984. (In this connection we consider it unfortunate that when the Adoption (High Court) Rules 1976 and the Adoption ( County Court) Rules 1976 were revoked and the Adoption Rules 1984 introduced in their place, the opportunity was not taken to cover this aspect specifically as suggested by Mr. Justice Hollings in Re H). In the event the aunt's application came before His Honour Judge Willock, Q.C. as an unopposed application.
However, the learned judge refused to make an adoption order. His reasons were as follows:
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(i) He took the view from reading the report of the guardian ad litem, as well as from his conversation with the aunt which strongly confirmed it, that a very important (if not the principal) motive of the aunt was to provide herself with a son whose duty it would be to safeguard her old age.
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(ii) He took the view that another important matter for what he described as "this late application" was to secure William's immigration, beyond the ordinary immigration controls.
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(iii) William is in his eighteenth year and does not need adoption to ensure his welfare from childhood to adulthood.
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(iv) William has a perfectly natural family relationship already with the aunt, so that adoption is not needed, either to foster love or to provide a child with a settled place within a family.
From that refusal the aunt has appealed to this court. By consent the Home Office was made a respondent to the appeal under Order 59, rule 8, and has appeared before us by counsel to support the decision of the learned judge.
Accordingly it is necessary for us to consider the interaction between the law relating to adoption and the law relating to immigration. Although there are several reported cases at first instance on the subject, we were told that this is the first such case to come before the Court of Appeal.
Section 3 of the Children Act 1975 provides that in reaching any decision relating to the adoption of a child, a court shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding. (We were told that the judge did not in fact speak to William at the hearing below, but he can have been left in no doubt that William very much wished to be adopted by the aunt). "First consideration" in this context was explained by Lord Simon of Glaisdale in In re D (Adoption: Parent's Consent) [1977] A.C. 602 at page 638E:
"In adoption proceedings the welfare of the child is not the paramount consideration (i.e. outweighing all others) as with custody or guardianship, but it is the first consideration (i.e. outweighing any other)."
That, then, is the test which the court has to adopt when deciding whether or not to make an adoption order.
The adoption of a foreign minor by a British citizen has, in the context of its relationship with the immigration law, two significant effects:
(1) It confers on the adopted child British citizenship as from the date of the adoption order—see section 1 (5) of the British Nationality Act 1981. (2) It confers on the adopted child the right of abode in the United Kingdom for the purpose of section 1 (1) of the Immigration Act 1971—see section 2 (1) (a) of that Act.
Without such a right of abode, the foreign minor would be subject to all the restrictions imposed by the Immigration Act 1971, in particular:
(a) He may only live, work and settle in the United...
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