Thomson and Others, R v The Minister of State for Children
| Jurisdiction | England & Wales |
| Judgment Date | 04 July 2005 |
| Neutral Citation | [2005] EWHC 1378 (Admin) |
| Date | 2005 |
| Court | Queen's Bench Division (Administrative Court) |
Adoption – Foreign child – Inter-country adoption – Suspension of adoption applications – Certificate of eligibility and suitability – Power to decline to issue a certificate – Whether minister had power to decline – Adoption Act 1976 – Adoption (Bringing Children into the United Kingdom) Regulations 2003.
The United Kingdom government took steps to improve the process of dealing with inter-country adoptions by British residents in 2003. The Hague Convention on Protection of Children and Co-operation in respect of Inter-country Adoption came into force along with the Adoption and Children Act 2002 to remedy the perceived deficiencies in the Adoption Act 1976. In accordance with s 56A of the 1976 Act, as amended, the defendant Secretary of State made the Adoption (Bringing Children into the United Kingdom) Regulations 2003 to prescribe the conditions to be met in respect of children brought into the United Kingdom following adoption by British residents. The 2003 regulations included the condition that, prior to the child’s entry into the United Kingdom, a person had to receive notification from the Secretary of State that he had issued a certificate confirming to the relevant foreign authority that the person had been assessed as eligible to be an adoptive parent and that the child would be authorised to enter and reside permanently in the United Kingdom. Following international concern, the Department for Education and Skills commissioned a report to investigate the adoption system in Cambodia . The report found that there appeared to be no procedure within the Cambodian inter-country adoption system to consider the best interests of the child and there was also no requirement for the birth parent of a child to be adopted to either give their informed consent to adoption or to be given any information about the consequences of adoption. On 22 June 2004, as a result of those concerns the Minister of State for Children announced to the House of Commons that the Secretary of State had decided to temporarily suspend adoptions from Cambodia except in exceptional circumstances. The claimants were six couples who by that date had reached various stages in the process of adopting Cambodian children. Between 27 September and 23 November the claimants made renewed applications and applications to be treated as exceptional circumstances which were all refused by the Minister. The claimants applied for judicial review of, inter alia, the Minister’s decision to
impose a temporary suspension and to refuse to issue them with certificates. Issues arose, inter alia, as to: (i) whether the Minister had power to withhold a certificate of eligibility and suitability to adopt and whether her duty to issue such certificates did not afford her the power which she purported to exercise to suspend adoptions; and (ii) even if the Minister had such a power that power had not been lawfully and fairly exercised by the Minister.
Held—(1) The Minister had a discretion to decline to issue a certificate in the extraordinary circumstances of the case. Where a certificate was issued it was an extra-statutory certificate issued by the Minister under the Crown’s common law/prerogative powers. There was nothing in the language of the 1976 Act or the 2003 regulations which imposed any obligation to issue such a certificate or was in any way inconsistent with the continued existence of that discretionary power.
(2) In the circumstances, it was open to the Minister to exercise her discretion in the way she had and for the reasons she had given. Her decision was consistent with the proper exercise of her powers in the context of the statutory scheme as a whole; it met both the test of rationality and the test of proportionality.
Accordingly, the application would be dismissed.
Cases referred to in judgmentA v Secretary of State for the Home Dept; X v Secretary of State for the Home Dept[2004] UKHL 56, [2005] 3 All ER 169, [2005] 2 WLR 87.
A-G v Wilts United Dairies Ltd (1921) 37 TLR 884, CA; affd (1922) 91 LKJB 897, HL.
Bensaid v UK (2001) 11 BHRC 297, ECt HR.
Botta v Italy (1998) 4 BHRC 81, ECt HR.
Car Owners’ Mutual Insurance Co Ltd v Treasurer of Commonwealth of Australia [1970] AC 527, [1969] 3 WLR 374, PC.
Congreve v Home Office [1976] 1 All ER 697, [1976] QB 629, [1976] 2 WLR 291, CA.
Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935, [1985] AC 374, [1984] 3 WLR 1174, HL.
D (a child), Re[2005] UKHL 33, [2005] 2 FCR 223.
Dalila Di Lazzaro v Italy (1997) 90 DR 134, E Com HR.
Doody v Secretary of State for the Home Dept [1993] 3 All ER 92, sub nom R v Secretary of State for the Home Dept, ex p Doody [1994] 1 AC 531, [1993] 3 WLR 154, HL.
Feldbrugge v Netherlands (1986) 8 EHRR 425, [1986] ECHR 8562/79, ECt HR.
Frette v France[2003] 2 FCR 39, [2003] 2 FLR 9, ECt HR.
Gaskin v UK (1989) 12 EHRR 36, ECt HR.
Johnson v UK (1999) 27 EHRR 296, [1997] ECHR 22520/93, ECt HR.
Kingsley v UK (2002) 35 EHRR 177, [2002] ECHR 35605/97, ECt HR.
Laker Airways Ltd v Department of Trade [1977] 2 All ER 182, [1977] QB 643, [1977] 2 WLR 234, CA.
M (adoption: international adoption trade), Re[2003] EWHC 219 (Fam), [2003] 3 FCR 193, [2003] 1 FLR 1111.
Maaouia v France (2000) 9 BHRC 205, ECt HR.
Marckx v Belgium (1979) 2 EHRR 330, [1979] ECHR 6833/74, ECt HR.
Matthews v Ministry of Defence[2003] UKHL 4, [2003] 1 All ER 689, [2003] 1 AC 1163, [2003] 2 WLR 435.
Niemietz v Germany (1993) 16 EHRR 97, [1992] ECHR 13710/88, ECt HR.
Padfield v Minister of Agriculture Fisheries and Food [1968] 1 All ER 694, [1968] AC 997, [1968] 2 WLR 924, HL.
Pini v Romania (2004) 40 EHRR 312, ECt HR.
Preston, Re [1985] 2 All ER 327, [1985] AC 835, [1985] 2 WLR 836, HL.
Pretty v UK (2002) 12 BHRC 149, ECt HR.
R (Bibi) v Newham London BC, R (Al-Nashed) v Newham London BC[2001] EWCA Civ 607, [2002] 1 WLR 237.
R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Affairs[2002] EWCA Civ 1598, [2003] 3 LRC 297.
R (on the application of Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions[2001] UKHL 23, [2001] 2 All ER 929, [2003] 2 AC 295, [2001] 2 WLR 1389.
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2001] 3 LRC 249, [2001] QB 1067, [2001] 2 WLR 1219.
R (on the application of Bibi) v London Borough of Newham; R (on the application of Al-Nashed) v London Borough of Newham[2001] EWCA Civ 607, [2002] 1 WLR 237.
R (on the application of Mullen) v Secretary of State for the Home Dept[2004] UKHL 18, [2004] 3 All ER 65, [2005] 1 AC 1, [2004] 2 WLR 1140.
R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs[2002] EWCA Civ 1409, [2002] All ER (D) 450 (Oct).
R (on the application of Razgar) v Secretary of State for the Home Dept[2004] UKHL 27, [2004] 3 All ER 821, [2004] 2 AC 368, [2004] 3 WLR 58.
R (on the application of Rose) v Secretary of State for Health [2002] EWHC 1593 (Admin), [2002] 3 FCR 731, [2002] 2 FLR 962.
R (on the application of S) v Chief Constable of South Yorkshire, R (on the application of Marper) v Chief Constable of South Yorkshire[2004] UKHL 39, [2004] 4 All ER 193, [2004] 1 WLR 2196.
R (on the application of Zeqiri) v Secretary of State for the Home Dept[2002] UKHL 3, [2002] All ER (D) 184 (Jan).
R v IRC, ex p MFK Underwriting Agents Ltd [1990] 1 All ER 91, [1990] 1 WLR 1545, DC.
R v IRC, ex p Unilever plc [1996] STC 681, CA.
R v North and East Devon Health Authority, ex p Coughlan (Secretary of State for Health and another intervening) [2000] 3 All ER 850, [2001] QB 213, [2000] 2 WLR 622, CA.
R v Secretary of State for Education and Employment, ex p Begbie [2000] 1 WLR 1115, CA.
R v Secretary of State for Foreign Affairs, ex p World Development Movement Ltd [1995] 1 All ER 611, [1995] 1 WLR 386, DC.
R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] 1 All ER 655, [1989] QB 811, [1989] 2 WLR 224, CA.
R v Secretary of State for the Environment, ex p Islington London BC [1991] NPC 90, CA.
Runa Begum v Tower Hamlets London BC[2003] UKHL 5, [2003] 1 All ER 731, [2003] 2 AC 430, [2003] 2 WLR 388.
Sentges v Netherlands App No 27677/02 (8 July 2003, unreported), ECt HR.
Singh v Entry Clearance Officer, New Delhi[2004] EWCA Civ 1075, [2004] 3 FCR 72, [2005] 2 WLR 325, ECt HR.
Walker v Baird [1892] AC 491, PC.
X v Belgium and Netherlands (1975) 7 DR 75, E Com HR
X v Netherlands (1981) 24 DR 176, E Com HR.
X v UK (1977) 12 DR 32, E Com HR.
Judicial reviewSix couples (the third to fourteenth claimants) applied for judicial review of the Secretary of State’s decision on 22 June 2004 to impose a temporary suspension on intercountry adoptions from Cambodia and her subsequent decisions in each of their cases not to allow them to proceed under the ‘exceptional circumstances’ exception. The fifteenth claimant is the adopted daughter of one of those six couples. The facts are set out in the judgment.
Helen Mountfield (instructed by Bindman and Partners) for the claimants
Philip Sales and Robin Tam (instructed by the Treasury Solicitor) for the defendant
MUNBY J.[1] Six couples—the third to fourteenth claimants—apply for judicial review of the Secretary of State’s decision on 22 June 2004 to impose a temporary suspension on intercountry adoptions from Cambodia and her subsequent decisions in each of their cases not to allow them to proceed under the ‘exceptional circumstances’ exception. The fifteenth claimant is the adopted daughter of one of those six couples—the fifth and thirteenth claimants—and was adopted by them from Cambodia before the imposition of the suspension. One other couple—the first and second claimants—no longer pursue their application.
[2] This judgment is far longer than I would have wished, but its length reflects the very lengthy, detailed and complex submissions, both written and oral, that were addressed to me...
To continue reading
Request your trial
-
R Anthony John Flatley v Hywel Dda University Local Health Board The Welsh Ministers (Interested Party)
...respectfully borrow a phrase from Munby J (as he then was) in R (Charlton Thomson) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin) at [152], this challenge falls at the very first hurdle – and for the same reason as the challenge in that case fell at that same stage. ......
-
Northumberland County Council v Z, Y, X and Another
...adoption of Cambodian children as described in R (Charlton Thompson and others) v Secretary of State for Education and Skills [2005] EWHC 1378 (Admin), [2006] 1 FLR 175. 65 The sad reality, as I pointed out in my previous judgment, is that, unhappily, as the experience of the judges of the......