This judgment is being handed down in private on 15th March 2013. It consists of 30 paragraphs 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.
Strand, London, WC2A 2LL
B e f o r e :
|Kent County Council v. PA-K and IA (a child)|
PA-K, the mother, did not appear and was not represented
Christopher Hames for the Children's Guardian, Bob McGavin
Hearing date: 11th March 2013
Crown Copyright ©
Mrs Justice Pauffley :
The mother's absence from the hearing
Interplay between the UK and the USA in relation to adoption
A mechanism for placing IA with Mr and Mrs X
(2) "Where – (a) a child is placed for adoption under s.19 or an adoption agency is authorised to place a child for adoption under that section, or
(b) a placement order is in force in respect of a child,
then (whether or not the child is in England and Wales) a person may not do either of the following things, unless the court gives leave or each parent or guardian of the child gives written consent.
(3) Those things are –
(a) causing the child to be known by a new surname, or
(b) removing the child from the United Kingdom.
(4) Subsection (3) does not prevent the removal of a child from the United Kingdom for a period of less than one month by a person who provides the child's home.
"….. should be read restrictively … It should not be taken as covering what are temporary removals pending a return to apply for a Convention adoption order in this jurisdiction – and return they must, not least because that is what is required by the USA immigration authorities. In those circumstances, in my judgment, s.28(2) and (3) empower the court to sanction an arrangement which means that the period prescribed by s.42 can be spent outside the jurisdiction. In order to clearly distinguish this situation from one to which s.85 would apply, the court should assert that the child remains subject to this jurisdiction, permission should be given for a specific time and the prospective adopters should be required to return the child to the jurisdiction within that period or earlier if called upon to do so."
"The Convention shall apply where a child habitually resident in one Contracting State ("the State of origin") has been, is being, or is to be moved to another Contracting State ("the Receiving state") either after his or her adoption in the State of origin by spouses or a person habitually resident in the receiving State, or for the purposes of such an adoption in the receiving State of origin."
A child looked after overseas – 'habitual' or 'ordinary' residence
"In determining the 'ordinary residence' of a child for any purpose of this Act, there shall be disregarded any period in which he lives in any place – ……
(c) while he is being provided with accommodation by or on behalf of a local authority."
Discussion and conclusion
And Upon hearing Counsel for the local authority and Counsel for the Children's Guardian;
And Upon the Court recording the following material facts:
• The child remains subject to a care order and placement order made in in favour of the local authority on _____________________
• In consequence of the Care Order, under English law, the local authority holds parental responsibility for The child and is entitled to exercise that parental responsibility to the exclusion of every other person, including the child's parents;
• The local authority has approved as foster carers (whose identity is confidential to the court within these proceedings but who will be referred to herein as Mr and Mrs X)
• The local authority care plan, which the court approves, is to place The child with Mr and Mrs X for the purpose of a time limited visit which is envisaged in the first instance to be of 1 year's duration, but which may, dependent on the circumstances at that time, and subject to the necessary visa being in place, be further extended;
• Throughout the term of the proposed placement, the local authority will retain full responsibility for meeting all of The child's needs, and will monitor and support her placement with Mr and Mrs X in both financial and practical terms and that this responsibility will continue for the duration of any part of the placement which is spent outside of England and Wales;
• While acting as The child's foster carers Mr and Mrs X will not hold parental responsibility for her, and in particular they will not be entitled to determine her place of residence;
• If in the future Mr and/or Mrs X wish to adopt The child while they are still habitually resident in the US, such adoption application would have to be carried out in compliance with the Hague Convention of 29th day May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption, under which the US central authority will issue Article 15 to the Department of Education and the relevant UK central authority would take responsibility for the assessment of the child and the preparation of the Article 16 report;
And Upon the local authority confirming that it will not place The child into the care of Mr and Mrs X unless it has first obtained and lodged with this Court a completed General Form of Undertaking signed by Mr and Mrs X wherein they must undertake to return The child to England and Wales forthwith upon request of the local authority or upon the order of this Court and in any event to return her to England and Wales not later than [insert specific date]
And Upon the Court declaring that in the event that The child is placed with Mr and Mrs X and has her home with them in the US for a period of time, any such period shall not have the effect within English law of changing The child's place of habitual residence which shall remain at all times in England and that at all times this Court shall retain primary jurisdiction in respect of The child's welfare.
And Upon the Court confirming that as a matter of English Law, in exercising its parental responsibility for The child, the local authority is entitled to apply to any foreign Embassy or Consulate for a visa which would enable The child to enter temporarily into that jurisdiction, irrespective of whether or not the mother has consented to that application being made;
And Upon the Children's Guardian consenting to the terms of this order on behalf of The child
IT IS ORDERED THAT:
1. Pursuant to s.28 there be permission to the local authority to remove The child from England and Wales for a period of not exceeding 1 year from the date of her removal, on the basis that The child must in any event be returned to England and Wales not later than 23.59 on [insert date].
2. Permission is given to the local authority to disclose this order to the US consulate as part of any visa application it issues on The child's behalf to enable her to take up the opportunity of an extended visit in that country.
3. Permission is given to the local authority to disclose the report of the children's guardian prepared within these proceedings to Mr and Mrs X.
4. No order for costs.
DATED this 12th day of March 2013