Important Notice

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.

Case No: ZW16Z00058

Neutral Citation Number: [2016] EWFC 75
IN THE FAMILY COURT
Sitting at the Royal Courts of Justice
The Royal Courts of Justice
Strand
London WC2A 2LL

8th November 2016

BEFORE:

MRS JUSTICE THEIS DBE

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 Re X 

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MS K CRONIN (instructed by Imran Khan & Partners) appeared on behalf of the Applicant

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JUDGMENT
MRS JUSTICE THEIS DBE:  
1.	The court is concerned with an application for adoption made by Ms S, who is seeking an adoption order in respect of a little girl called X age 10.

2.	X has been given a notional date of birth for reasons which I shall explain shortly.  Ms S adopted X in India in March 2012 when she was then aged about 6, they lived together in India from about March 2012 to October 2012, and since then have had their home in the United Kingdom.

3.	A little background to the application.  X was found abandoned outside a temple in Delhi in June 2008 with some signs of injury and hearing loss attributable to early untreated ear infections.  She was placed in the care of the Delhi Council for Child Welfare and was housed in the Z orphanage.

4.	Her family circumstances were investigated. In the papers the court has seen, there were clearly strenuous attempts made to try and locate her birth family.  Those inquiries were made in a number of ways, which included circulating posters, a social worker who was attached to the orphanage making inquiries in the area, placing a notice in relation to X seeking a family in the local newspaper, and also inquiries with the local police station as to whether any attempts had been made to find her. 

5.	The authorities there made inquiries in relation to her family circumstances, but unfortunately her family could not be found.  On 28 April 2010, X was formally freed for adoption following the relevant procedures in India through the Child Welfare Committee, as set out in the documents in the court bundle.

6.	At that time, the applicant was habitually resident in India because she had lived there since 2007, working there as a teacher.  She was formally assessed there as set out in a report prepared by Ms C, a social worker from the Delhi Department of Social Welfare.  Her report is very positive and states as follows in relation to the applicant.  She found her: 
".. mature, warm, honest, simple, humorous and cordial.  She loves and desires children and since she is single and has no plans to marry, she has decided to adopt and fulfil her maternal instincts.  She does not have any ulterior motive for adoption, she is socially, emotionally and psychologically prepared.  Her financial position is very sound.  Her standard of living maintained by her is that of an upper middle class family.  She possesses all the necessities and luxuries of life.  She has highly educated and enjoys a secure and happy life.  She belongs to a very close knit and loving family who fully support her in her decision to adopt.  The entire environment both within and outside her house is highly conducive and congenial for the healthy growth and development of a child.  The social worker highly recommends Ms S for adoption.  Any child by her is bound to receive a great deal of love, care and all opportunities to grow and develop into a fine, loving and secure human being."

7.	At that time, Ms S informed the British High Commission of her intention to adopt and provided the consulate with evidence of her Indian habitual residence status.  Under such procedures, the consulate and the Department for Education issued a no objections certificate dated 3 March 2011, which served to permit Ms S to adopt under Indian local adoption legislation without further reference to the requirements of the British adoption legislation.

8.	The application to adopt X proceeded in accordance with the provisions of India's Juvenile Justice (Care and Protection of Children) Act 2000.  The court documents made clear the Delhi District Court gave permission to the Z orphanage to give X to the applicant and for the adoption. The agreement between the orphanage and the applicant was evidenced in an adoption deed in the court's grant of permission to the gifting of X, which had the effect in law that X became the applicant's legitimate daughter. Her family identity was changed by this adoption, as set out in the documents, confirming that the placement took place with X and Ms S on 10 March 2012 and the order was sealed on 12 March 2012. The parties entered into a deed in accordance with the procedures there on 30 March 2012.
9.	The adoption that was clearly legitimately obtained and secured in India is not recognised in the United Kingdom.  At the time of the adoption in March 2012, India, then a Hague signatory state, was not on the designated country list.  That is the list of overseas adoptions which give automatic recognition in our law under sections 66 and 87 of the Adoption and Children Act 2002 and the Adoption (Designation of Overseas Adoptions) Order 1973.

10.	As a Hague state, India is now on the list of countries whose adoptions are recognised, but only those since 3 January 2014, so it follows that despite the careful and protective Indian adoption process, the applicant is not X's parent as a matter of law in this jurisdiction. At the time of the adoption order being made in March 2012, Ms S intended spending further time living with X in India.  Her plans changed due to her father's illness and her fixed term employment contract coming to an end.  She and X came to the United Kingdom in October 2012 when X was given 12 months' limited leave to enter outside of the immigration rules, which has been subsequently renewed.

11.	It is quite clear, as Ms Cronin sets out, that even though the adoption was in India, there is no breach of section 83 of Adoption and Children Act 2002 as Ms S and X were at all relevant times habitually resident in India.

12.	The Secretary of State for the Home Department has been notified of this adoption application and has indicated she does not wish to intervene, or make representations in these proceedings. As Ms Cronin sets out in her skeleton, if the adoption order is made, X will acquire British citizenship on the making of the adoption order pursuant to the British Nationality Act 1981, section 1(5).  

13.	In fact, Ms S was required to post a bond of about £10,000 that was held in trust by the Z orphanage when relocating with X.  That bond can only be released once X obtains citizenship of her country of residence.  That bond, as Ms Cronin sets out, is evidence of the importance that all parties associated with this placement by X with Ms S on her obtaining secure residence with the applicant.

14.	The adoption application is strongly supported by the social worker who has prepared the rule 14.11 report, he has come to court today.  It is an extremely positive report, attesting to the love and care X has received from the applicant and her extended family.  One of the most engaging parts of the report is the description in relation to X's arrival in this country in October 2012 when she visited her new home for the first time, gathered all Ms S's family together and made them join hands and dance together in the home. 

15.	X's remarkable resilience and her presentation as a confident vibrant, articulate, sensitive and gentle young girl who would benefit from the additional sense of security and permanence that an adoption order would bring is clearly set out in the social worker’s report. He has seen X alone on three occasions in March, June and September of this year to be able to discuss matters with her.  He has also visited the family on five occasions since June 2015 and had detailed discussions with the three referees as set out in the report.  He strongly supports the adoption order being made.

16.	Since their return back to this jurisdiction, Ms S has been the head of department at a Community College in London, undertaking work very similar to what she did before she went to India.  X has been attending a Primary School. It is quite clear from the reports from the school that she is doing extremely well there.  The positive social work report gives a glowing account in relation to the progress X has made at the school, the way she has participated in wider aspects of the school curriculum and is obviously a very valued member of the class.

17.	Turning to the more formal requirements the court has to be satisfied about, there are eight stages before it can consider making the adoption order.  

18.	Firstly, under s 42(5) ACA 2002, the court has to be satisfied that X has had her home with the applicant at all times during the period of three years in the five years preceding the application.  It is quite clear from the evidence X has had her home with Ms S since March 2012.

19.	Secondly, Ms S must have given notice to the appropriate local authority of her intention to apply for the adoption order.  She gave notice in writing on 4 November 2014.  The adoption application is dated 15 April 2016, which was more than three months and less than two years after they had given notice intending to seek an adoption order.

20.	The third requirement is she either has to be domiciled here, or been habitually resident here for a year prior to making the adoption application.  It is quite clear that for a year prior to the application which she made on 15 April, Ms S was habitually resident here having come back in October 2012 and established her home back here.

21.	Fourthly, the court must be satisfied that X is not married, does not have a civil partner and has not attained the age of 19.  She is under the age of 18, is unmarried and does not have a civil partner.

22.	The fifth requirement is there has been sufficient opportunities for the relevant agency to see X with the applicant in their home environment.  The detailed rule 14.11 report and the visits I have outlined over the period of the last 15 months demonstrate that opportunity has been given.

23.	Sixthly, the court has jurisdiction to make an adoption order if Ms S is the sole adopter and is over the age of 21.

24.	The seventh matter is the question in relation to the parents' consent.  Under section 52(2) ACA 2002, the court cannot dispense with the consent of any parent to the child being placed for adoption or the making of an adoption order in respect of a child unless the court is satisfied that the parent or guardian cannot be found or lacks capacity to give consent, or the welfare of the child required that consent to be dispensed with.

25.	Ms Cronin submits that the court on the information that it has can be satisfied X’s parents cannot be found.  At the time of X's abandonment in 2009 the Indian welfare authorities and the police made conscientious, but unsuccessful, efforts to find X's parents.  Their identity and whereabouts remain unknown.

26.	In the circumstances of this case, bearing in mind the documents the court has, it is established X's parents cannot be found and there is no way that the court would be able to find them on the information the court has, bearing the mind the careful steps taken by the Indian authorities before they made the decision in 2010 that she should be freed for adoption.

27.	The final hurdle and important matter is X's lifelong welfare needs.  The court needs to consider the matters set out in section 1 ACA 2002.  The making of an adoption order will undoubtedly bring lifelong benefits for X.  She is happily integrated into Ms S's family, with strong attachments to Ms S and her extended family.  The likely effect on her of an adoption order being made, ceasing to be a member of the original family is in the circumstances of this case a positive factor, because her remaining as a matter of English law a member of her birth family brings no benefit to her in her particular circumstances.

28.	The adoption order will secure her position in a lifelong stable and loving family, will cement her relationship with the applicant and the wider family, in particular SS and MS, and SY and HI, who are clearly very important aspects of X's current family life.

29.	Her national cultural, linguistic, ethnic and religious background is also protected by this order being made.  Ms S is of Indian ethnicity and X's right of residency in India is preserved via this adoption.  Her ethnic and linguistic background is maintained by the family, which promotes her Christian religion which she found through her time in the orphanage, but also allows her to understand Hinduism as well.

30.	X herself greatly wishes this adoption order to be made, and given her background, age, maturity and her residence with the applicant and her family, her wishes in these circumstances carry considerable weight.  It is quite clear from the detailed social work report that he recommends that an adoption order is made, concluding as follows.  

"X has a hugely positive relationship with the applicant and would benefit from a sense of permanency and security that such an order would bring.  X has an understanding of the implications of the order and wishes that it be made."

31.	I have absolutely no hesitation in concluding that X’s lifelong welfare needs will be met by this court making an adoption order.