Re WM (Adoption: Non-Patrial)
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1996 |
| Court | Family Division |
JOHNSON, J
Adoption – foreign child – child adopted by English applicants abroad – applicants subsequently applying for adoption order in England – mother agreeing to adoption – applicants separating after application – whether adoption order should be made.
The child, a boy, was born in El Salvador in 1992. For economic reasons the mother decided to give the child up for adoption. She was put in contact with a lawyer who knew of foreign families who would be willing to adopt her son.
The applicants were an English couple in their 40s. They had a son born in 1985. Being unable to have more children and being of an age when adoption was not available for them in England they decided to seek a child overseas. They were put in touch with the same lawyer in El Salvador. They went to El Salvador and, having paid him £5,000, he arranged for them to adopt the child in El Salvador. This they did with the agreement of the mother in October 1993. There was evidence that the mother was aware that there would be adoption proceedings in England.
The applicants returned to England and in January 1994 notified the local authority of their intention to apply to adopt the child in England. Their application was dated March 1995. The normal inquiries were made and in May 1995 a social worker reported favourably.
In July 1995 the applicants separated. The child continued to live with the female applicant with regular contact with the male applicant.
Held – In considering whether the making of an adoption order would advance and promote the welfare of the child, it was clear that there was no prospect of the child returning to his natural mother. The only other option was to take steps which would result in the child being found a home elsewhere in England. In these circumstances the making of an adoption order would be very much in the child's interests. There had been breach of s 11 of the Adoption Act 1976 in that the child had neither been placed with the applicants by an adoption agency nor in pursuance of an order of the High Court. However, that provision did not prevent the High Court from making an adoption order. There had also been a breach of s 57 of the 1976 Act in that the applicants had paid £5,000 to the lawyer in El Salvador but in the present case the court would exercise its discretion to authorize that payment retrospectively. Section 16 of the Act provided that an adoption order should not be made unless the parent agreed to the making of the order, and by virtue of the terms of ss 62 and 72 of the Act this meant an order made by a court in England and Wales. In this case there was evidence that the mother was aware that there would
be adoption proceedings in England and that she gave her agreement for the purpose of those proceedings. In the circumstances the requirement of s 16 was satisfied. The terms of s 15 of the Act suggested that adoption was envisaged as being either by married couples living together or by single adopters; but there was no specific provision which barred the making of an adoption order in favour of a separated couple jointly. However, s 13 of the Act provided that, in the case of an application by a married couple, an order should not be made unless the local authority had had sufficient opportunity to see the child with both applicants together in the home environment. In this case the social worker had been in touch with the family ever since the local authority were notified in January 1994 by the applicants of their wish to adopt the child and had had more than sufficient opportunity to see the child with both applicants between the making of their application in March 1995 and their separation in July 1995. In the circumstances of the present case there would be considerable advantage in making an adoption order in favour of both applicants even though they were separated. Such an order would confer on the male applicant parental responsibility and the child would become a child of the family with the financial advantage that would have for the child under the...
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