Re X (Adoption Application: Gateway Requirements)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Theis DBE |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWHC 689 (Fam) |
| Date | 27 March 2013 |
| Docket Number | Case No: FD12Z00510 |
| Court | Family Division |
[2013] EWHC 689 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Theis DBE
Case No: FD12Z00510
and
and
and
Ms Kathryn Cronin (instructed by Goodman Ray) for the Applicant
Mr Alex Forbes (instructed by A Local Authority) for the 3rd Respondent
Ms Abigail Bennett (instructed by Forshaws Davies Ridgeway) for the 4th Respondent
Hearing dates: 7th March 2013
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.
This judgment is being handed down in private on 27 March 2013. It consists of 12 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
This matter concerns an application by AB (hereafter referred to as the applicant) to adopt X, now 15 years. X's mother, BC, is the applicant's partner (hereafter referred to as the mother). They are engaged and plan to marry. The provisions of section 51 (2) Adoption and Children Act 2002 ('ACA 2002') provide for adoption applications by a person who is the partner of the parent of the person to be adopted. X's mother and father are parties to this application, but are not present or represented. There is written evidence they consent to this application. The other parties are the relevant Local Authority and X, through her Children's Guardian.
The applicant's application to adopt X is dated 5 October 2012. Following a preliminary hearing on 28 November 2012 District Judge Simmonds transferred the application to the High Court.
The matter came before me on 20 December 2012. I directed this hearing to consider the following preliminary issues:
i Whether the applicant has an English domicile and thus the standing to apply for this adoption order. This issue was conceded by the Local Authority prior to this hearing;
ii. Whether the 'home' identified in s42 (3) ACA 2002 has to be within the area of this Local Authority. This issue was conceded by the Local Authority prior to this hearing;
iii. Whether pursuant to s42 (3) ACA 2002 X has had her home with the applicant at all times during the period of 6 months preceding his application dated 5th October 2012. This issue remains in dispute;
iv. Whether the proposals the applicant put forward in relation to the Local Authority's statutory investigation and assessment constitute a sufficient opportunity to see X in the home environment as required by s42 (7) ACA 2002. This issue remains in dispute;
v. Whether in the circumstances of this case the applicant and X have a home environment within the area of this Local Authority for the purposes of s42 (7) ACA 2002. This issue remains in dispute.
I have had the benefit of detailed skeleton arguments from Ms Cronin, on behalf of the applicant, Mr Forbes, on behalf of the Local Authority, and Ms Bennett, on behalf of the Children's Guardian. I am grateful to them for the detail and analysis in these helpful documents. Ms Bennett's position in her written skeleton is to support the analysis set out by Ms Cronin, although that position changed during the hearing. I heard oral evidence from the applicant and oral submissions from all counsel.
Background
The applicant was born in England. He worked in England until the late 1970s. Since then he has mainly worked abroad in the Middle and Far East. He has always retained a home in the area of the Local Authority and has spent some time back living in this jurisdiction. According to his written evidence he jointly owns properties with his former wife. The plan is to sell those properties to provide for their respective retirements. One property, the applicant has owned since 1998. It is this property he proposes he and X are based in for the purposes of the s 42 (7) ACA 2002 assessment. It is currently rented out. The applicant states his intention has always been to return to this jurisdiction when he retires. His mother, siblings and children live in this jurisdiction.
The applicant married Ms Y in 1984. He adopted her two children, by orders made in the County Court. Between 1995 and 1998 they returned to live in this jurisdiction before basing themselves in country A, although they lived 'on and off' back here between 1998 and 2007. These children attended boarding school in country B before attending university here. They both live here and have recently got married.
The applicant met X's mother in country A in 2008. The mother had separated from her husband in 1999; their marriage was annulled in 2010 with the mother being granted sole custody of X. X has not seen her father since 2008, although they have had some contact via facebook. He has since remarried. Following the separation of her parents X had lived in country C with her mother and then her maternal grandmother. X and her parents are citizens of country C. X was born in country C. The mother relocated to country A in December 2007. The Applicant started living with the mother in 2009 in country A, where they remain based both working full time.
The chronology regarding the development of the relationship between the Applicant and X had to be adjusted somewhat following the oral evidence of the Applicant.
According to his written evidence, the applicant's first meeting with X was at the maternal family home in country C in March/April 2009. She was enrolled to attend boarding school in country B from January 2011, she still attends that school. The applicant bought a house in country B about 10 years ago as a holiday home. He described it in his statement as follows 'Now it is used by our family during X's school holidays and as a place where I can holiday in to unwind and still run my business from'. In his first statement he said 'We always spend all of the school holidays as a family, usually together either in England, or in our property in [country B] or in [country C]..'. In his second statement he said '…X has her school and family life abroad with BC and me. So, with X living with us in countries A and B and attending school thousands of miles away in country B,….'. In his third statement he said 'We are a family with multiple homes and X lives with us in different places – in our country B home, country A and with her maternal family in country C. X has had her home with us jointly since June 2009. At that time she was attending school in country C and we spent our family holidays there and in country B. From January 2011 we have lived with her around her … school terms.' Later in the statement he said 'In the six months leading up 5 October 2012 when I issued my application, in addition to our daily or weekly contact, X physically spent time with us on every long school holiday at our home in … country B in April 2012 and at home in country C in August 2012.'. The clear impression from the Applicant's statements was of regular contact with X, and since January 2011 all spending school holidays together.
The oral evidence painted a very different picture. The applicant was surprisingly vague about the detail, bearing in mind this was an important part of his case. According to his oral evidence, following the applicant's first meeting with X in the spring of 2009 at the maternal grandparents home in country C until December 2010/January 2011 they met on three further occasions during relatively short visits to country C lasting one or two weeks (one 3 – 4 months after the first visit in 2009, over Christmas/New Year 2009/2010 and at least one occasion in 2010). The next time the Applicant saw X was around the time she started at the school in country B. The applicant stayed in his home in country B for about a week to settle her in. Thereafter, during each school holiday X either stayed with a teacher in country B or returned to the maternal grandparents in country C, save for possibly Easter 2011 when the Applicant said he stayed with her for a week at his home in country B, followed by possibly a short period in the summer 2011, again in country B. X went to the country A at Christmas 2011/New Year 2012. This was her first trip there. In 2012 the only occasion the applicant could specifically remember was a trip in October 2012 with X and her mother. X spent all the 2012 summer holidays in country C and he thought during the 2012 Easter holidays they may have spent some time staying in country B. The shorter half term holidays were generally spent by X staying with a teacher in country B. He emphasised that the mother had only limited holiday time from her job, which curtailed her opportunities to visit her daughter. He said X had not come to country A any other times as both he and X's mother work full time, so she would have spent a lot of time on her own. X has not been to the UK. She did not accompany the applicant on his recent trips back to the UK. One occasion was for the wedding of his adopted daughter from his previous marriage. He said it would have been insensitive to have brought her with him. The second time he came back here clashed with her exams.
The applicant said in his statements and oral evidence he is in regular communication with X, they speak most Sunday evenings and are in regular email/text contact. He attached to...
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