England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM - His Honour Judge Vincent,
sitting as a judge of the High Court
on 1 February 2008

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/02/2008

Sir Mark Potter P:

Introduction

1. This is the judgment of the court, to which each of its members has made a significant contribution.
2. This case was listed before us on 14 February 2008 as an application for permission to appeal against an order made by His Honour Judge Vincent, sitting as a judge of the High Court on 1 February 2008. By his order, made under section 84(1) of the Adoption and Children Act 2002 (the 2002 Act) the judge gave parental responsibility to Mr and Mrs C, the applicants in the proceedings before him in relation to a child, PG. The purpose of the order was to facilitate Mr and Mrs. C's removal of PG to the United States of America, where they intend to make an application to adopt her.
3. The application before us had been directed into the list by Wilson LJ on 8 February at short notice, with the appeal to follow if permission was granted. We say at once that in our judgment the application raises a point of some importance. We therefore grant permission to appeal. We regard it, however, as a case to which reporting restrictions should apply. Nothing must, accordingly, be published which identifies the child concerned, or any of the adults involved in the case, and this judgment, as will already be apparent, is written anonymously.

The facts

4. The appellant in this court is MM. She is aged 20 and is the mother of PG, who is a female child born on 22 July 2006. PG is thus now approximately aged 19 months. PG's father is a man whom we will call AG. He is aged 42. Both MM and AG, who are no longer living together, accept that neither is in a position to care for PG, and that it is in her best interests to be adopted. The only relevant difference between them is that AG agrees that PG should be adopted by Mr and Mrs. C in America: MM wishes her to be placed for adoption within the United Kingdom.
5. Care proceedings under section 31 of the Children Act 1989 were instituted in relation to PG on 3 August 2006 by a local authority, which in the interests of preserving confidentiality, we will not name. Thereafter PG remained in the interim care of that local authority, who placed her with foster parents in September of that year. On 1 August 2007, the local adoption panel recommended that she should be adopted. She was made the subject of a full care order in favour of the local authority on 25 October 2007. The recital to that order records the following: -

Upon hearing counsel for all parties

And upon the court concluding that the local authority care plan which primarily advances a case that [PG] should be placed with [Mr and Mrs C] with a view to them making an application for an order under section 84 of [the 2002 Act] should be approved

And upon the court approving an assessment plan of Mr and Mrs C for the purposes of an envisaged application by them for a section 84 order

And upon the court concluding that the requirements of section 84(4) would not be breached by such plan and in particular that the requirement that either Mr or Mrs. C should be living in a specified place or in the present of PG for any specific period of time, subject to the requirements of the assessment being fulfilled.

6. In addition to the care order, the local authority was granted permission pursuant to section 34(4) of the Children Act 1989 to suspend contact between PG and her birth parents. Mr and Mrs C's application under section 84 of the 2002 Act was adjourned to 1 February 2008. Other ancillary orders were made which are not material to this appeal. The plan thus was and remains that PG will be adopted by Mr and Mrs. C in America.
7. Mrs C is AG's sister. Albeit that the two are estranged, the plan has the advantage for PG that she will – despite being adopted - remain within the care of her wider paternal family. All the evidence (both in this country and in the United States of America) points to the fact that Mr and Mrs C are, in every way, suitable as adoptive parents for PG, and they have so been assessed both in this country and in the United States. The evidence is also clear that it is in PG's best interests to be adopted by Mr and Mrs C.
8. Mr. C is an American citizen: Mrs. C, who was born in England, is both a British and an American citizen. They live in the State of Illinois. It follows, in English law, that in order to be able lawfully to remove PG from England and Wales to Illinois in order to adopt her in Illinois, Mr and Mrs C have to obtain an order under section 84(1) of the 2002 Act. Such an order vests parental responsibility in them to the exclusion of all others: - see section 84(5) of the 2002 Act. On 1 February 2008, Judge Vincent made such an order, and it is this order which is challenged by MM on this appeal.
9. The preamble to the order made by the judge on 1 February 2008 states that the court was satisfied that Mr and Mrs C intended to adopt PG under the law of the United States of America. The schedule to the order identifies Mr and Mrs. C as the applicants for the order, and PG as the child born to MM and AG. Under the heading: Conditions for adoption, the following was recorded: -

The court confirms that one of the conditions (appropriate to this case) as set out at section 47(2) and (4) of (the 2002 Act), as amended by the Adoptions with a Foreign Element Regulations 2005 has been met and an order under section 84(1) may therefore be made in respect of the child.

The statutory framework for taking children out of the United Kingdom prior to adoption abroad

10. Both in the 2002 Act and in The Adoptions with a Foreign Element Regulations 2005 (henceforth "the Regulations") Parliament has set out what has to be done before a child can be taken abroad for the purposes of being adopted in a foreign country. Applying those provisions to the facts of the instant case, section 85(1) of the 2002 Act provides that a child in PG's situation must not be removed from the United Kingdom to Illinois unless Mr and Mrs C have parental responsibility for her under section 84 of the Act. In this appeal, we are thus concerned with that section of the 2002 Act, and also with paragraph 10(b) of the Regulations. The former reads as follows: -

84 Giving parental responsibility prior to adoption abroad

(1) The High Court may, on an application by persons who the court is satisfied intend to adopt a child under the law of a country or territory outside the British Islands, make an order giving parental responsibility for the child to them.

(2) An order under this section may not give parental responsibility to persons who the court is satisfied meet those requirements as to domicile, or habitual residence, in England and Wales which have to be met if an adoption order is to be made in favour of those persons.

(3) An order under this section may not be made unless any requirements prescribed by regulations are satisfied.

(4) An application for an order under this section may not be made unless at all times during the preceding ten weeks the child's home was with the applicant or, in the case of an application by two people, both of them.

(5) Section 46(2) to (4) has effect in relation to an order under this section as it has effect in relation to adoption orders.

(6) Regulations may provide for any provision of this Act which refers to adoption orders to apply, with or without modifications, to orders under this section.

(7) In this section, "regulations" means regulations made by the Secretary of State, after consultation with the Assembly.

11. We do not think it necessary to set out section 46(2) to (4) or section 47(2) and (4) of the 2002 Act. The former deals with the effects of adoption orders made in England and Wales, and provides that such orders extinguish the parental responsibility previously held by any person other than the prospective adopters. As we have already pointed out, the effect of an order under section 84 is the same: it extinguishes the parental responsibility previously held by PG's birth parents as well as that conferred on the local authority by the care order pursuant to section 33(3) of the Children Act 1989.
12. Section 47(2) and (4) of the 2002 Act sets out the conditions for the making of a domestic adoption order. As applied to the instant case, it provides that parental consent to the making of an adoption order has been dispensed with by the court, and that PG has been placed with Mr and Mrs. C for adoption by an adoption agency. Both conditions are satisfied in the instant case.
13. We do, however, think it worthwhile noting that section 84(4) appears to be the counterpart of section 42(1) and (2) of the 2002 Act which applies to domestic adoptions, and which read: -

42 Child to live with adopters before application

(1) An application for an adoption order may not be made unless—

(a) if subsection (2) applies, the condition in that subsection is met ……..

(2) If—

(a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or

(b) the applicant is a parent of the child,

the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.

The Regulations

14. The paragraph of the Regulations which is directly in point is paragraph 10(b) and (c). This appears in Chapter 2 of Part 2 of the Regulations, which is headed TAKING CHILDREN OUT OF THE UNITED KINGDOM and reads as follows: -
Chapter 2
TAKING CHILDREN OUT OF THE UNITED KINGDOM

10 Requirements applicable in respect of giving parental responsibility prior to adoption abroad

The prescribed requirements for the purposes of section 84(3) of the Act (requirements to be satisfied prior to the making of an order) are that —

………

(b) in the case of a child placed by an adoption agency the relevant foreign authority has—

(i) confirmed in writing to that agency that the prospective adopter has been counselled and the legal implications of adoption have been explained to him;

(ii) prepared a report on the suitability of the prospective adopter to be an adoptive parent;

(iii) determined and confirmed in writing to that agency that he is eligible and suitable to adopt in the country or territory in which the adoption is to be effected; and

(iv) confirmed in writing to that agency that the child is or will be authorised to enter and reside permanently in that foreign country or territory; and

(c) in the case of a child placed by an adoption agency the prospective adopter has confirmed in writing to the adoption agency that he will accompany the child on taking him out of the United Kingdom and entering the country or territory where the adoption is to be effected, or in the case of a couple, the agency and relevant foreign authority have confirmed that it is necessary for only one of them to do so.

15. Whilst we are dealing with the relevant statutory provisions, we think it important to note that the definition of "relevant foreign authority" in paragraph 2 of the Regulations, which is headed "Interpretation" is as follows: -

relevant foreign authority" means a person, outside the British Islands performing functions in the country in which the child is, or in which the prospective adopter is, habitually resident which correspond to the functions of an adoption agency or to the functions of the Secretary of State in respect of adoptions with a foreign element;

16. We also note that in paragraph 4 of the Regulations, under the heading Conditions applicable in respect of a child brought into the United Kingdom, sub-sections (1) and (4) provide as follows: -

(1) This regulation prescribes the conditions for the purposes of section 83(5) of the Act in respect of a child brought into the United Kingdom in circumstances where section 83 applies.

(2) Prior to the child's entry into the United Kingdom, the prospective adopter must—

(a) receive in writing, notification from the Secretary of State that she has issued a certificate confirming to the relevant foreign authority—

(i) that the person has been assessed and approved as eligible and suitable to be an adoptive parent in accordance with Part 4 of the Agencies Regulations or corresponding Welsh provision; and

(ii) that if entry clearance and leave to enter and remain, as may be necessary, is granted and not revoked or curtailed, and an adoption order is made or an overseas adoption is effected, the child will be authorised to enter and reside permanently in the United Kingdom;

17. We will return to the significance of paragraphs 2 and 4 of the Regulations later in this judgment.

Is section 84(4) satisfied on the facts of this case?

18. The first question which arises is whether or not at all times during the 10 weeks preceding the making of the order on 1 February 2008, PG's home, in the words of section 84(4) of the 2002 Act "was with the applicant or, in the case of an application by two people, both of them". The factual basis upon which the judge approached the issue was in the following terms: -

…… Prior to the launch of their application for an order under section 84, Mr and Mrs. C came to England and, with assistance from the local authority, set up a temporary home here for PG. During the entirety of the 10 weeks preceding the issue of the application, Mrs. C has had full time care of PG in that home. Mr. C, in order to meet the requirements of his employment and the couple's obligations to their own children, has had to return to the USA. In total, he has been able to spend 3 weeks full-time in the English home. He has supplemented that by telephone contact with his wife and PG The local authority has there assessed him and bearing in mind previous assessments of the situation in the USA they are entirely satisfied with him as a suitable carer for PG.

19. Section 84 of the 2002 Act has attracted a great deal of criticism both from practitioners and the family judiciary on the basis that it operates as a significant disincentive to prospective adopters from abroad. Few people, it is argued, will have the capacity to interrupt their lives in order to provide a home for the child within this jurisdiction for the statutory period. There is, of course, the provision in section 86(2) of the 2002 Act which enables Parliament by Regulations to disapply section 85 if the prospective adopters are parents, relatives or guardian of the child in question (or one of them is). No such Regulations have, however, been made.
20. In this appeal we are not concerned with the disapplication of section 85. The first question for us is whether or not Mr and Mrs. C have satisfied the terms of section 84(4). The judge found that they had, and this finding forms the basis of the first point of challenge advanced by Miss Eleanor Platt QC on behalf of the appellant. Her submission is very simple. Mr C was only here for three weeks. The plain intention of Parliament was that a child in PG's position should make her home at all times during the 10 week period with both Mr and Mrs C. This she plainly did not do, and accordingly the application falls at the section 84(4) hurdle.
21. The judge did not accept this submission: neither do we. Having heard full argument on the point, both in the original care proceedings and in the application by Mr. and Mrs C for an order under section 84 of the 2002 Act, the judge concluded:-

The critical factor in this case is the proper construction of the phrase "during the preceding 10 weeks the child's home was with the applicant or in the case of an application by two people both of them". This issue of the construction of that phrase is a relatively complex one but a good starting point is to consider the natural meaning of the words used. Here the important words are "has his home with". It is noteworthy that the word "residence" is not used in the sub-section. Nor is "continually in the care of" which was a phrased used in earlier legislation. The phrase "has his home with" is not defined by the Act. The best way of trying to get a little closer to a proper construction of the words seems to me to be to examine some hypothetical examples. A child of a married couple, on any sensible view of the situation, would be deemed to have his home with both of them notwithstanding his own absence from the home for a school trip of a week or two. Equally, if one of the parents was physically absent for a week perhaps on a course connected with their employment no one would suggest that during that week the child had ceased to have his home with that parent. It might even be said that if the child were sent to boarding school it did not alter the proposition that during the period concerned, the child had his home with his parents. If that analysis is correct then it becomes clear that the presence of the child at a particular geographical location and the presence of one or both of the parents with the child at any particular time are not factors critical to the existence of the concept of the child having his home with them. It could even be argued that for the words "has his home with" there could be substituted the words "has a home provided by". One is driven to the view that the phrase is quote amorphous in nature and not capable of close definition but instead dependent upon the circumstances.

It is noteworthy that the same phrase is used in section 42 of the Act as a qualification for persons wishing to adopt a child within this country. Some clue as to the reasons for the provision can be seen from section 42(7) which says, and I paraphrase, that the court may not make an adoption order unless satisfied that sufficient opportunities to see the child with the applicant in the home environment have been given. The thinking behind the 10 weeks rule appears to be that it is thought to be a minimum period for proper assessment although it is fair to make the point that these are separate requirements. In fact, issues of this nature have been subject of judicial interpretation before. The combined effect of the cases Re CSC (an infant) [1960] 1 WLR 304, and Re KT (Adoption Application) [1993] Fam Law 567 (a decision of Ward J as he then was) is that the issue is one of fact and even if the child is physically absent, he may still be held to have his home with the applicants if they remain in effective parental control of him. The logic is that the same must be true in the event of absence by one of the applicants. There seems to me to be a very powerful case that PG had her home with both of the applicants given the facts that her accommodation was provided by both of them, that they both spent significant time with her, and lines of communication were not only available but also used to exercise joint and effective parental control over her. The issue is one of fact and degree and I have no hesitation in saying that the requirement is satisfied in this case.

22. In our judgment, the judge gives section 84(4) a sensible and purposive construction; and one, moreover, which was clearly open to him on the facts of the case. We think the judge was correct to identify the purpose of the provision as being not just to ensure that a relationship should begin to be established between the adopters and the child over a continuous period in a domestic context, but also to enable the domestic authorities (in this case the local English adoption agency) to assess Mr and Mrs C, and the relationship each enjoyed with PG. This they were plainly able to do.
23. We agree with the judge that the issue is one of fact and degree. The physical presence of Mr C throughout the 10 week period was not necessary to satisfy the proposition that PG's home was with both Mr and Mrs C throughout that period. Had Mr C not been present at all during the period, or only for a day or two, the situation would no doubt have been different. In that event it is unlikely that the local adoption agency would have had an adequate opportunity to make a proper assessment of him as a prospective adopter of PG. We would not attach much weight to telephonic contact between a prospective adopter and a child of 18 months, which might be relevant for an older child. But Mr C's presence was plainly sufficient to enable a satisfactory assessment to be made. In our view the judge was right to construe section 84(4) as he did and the degree of Mr C's physical presence was such as to entitle the judge to find that the requirements of that subsection were satisfied.

The argument under the Regulations

24. We therefore have no hesitation in dismissing the appeal in so far as it relates to the judge's construction of section 84(4). Miss Platt, however, had a much more formidable argument in the form of paragraph 10(b)(iv) of the Regulations. For ease of reference, we repeat that provision: -

The prescribed requirements for the purposes of section 84(3) of the Act (requirements to be satisfied prior to the making of an order) are that (b) in the case of a child placed by an adoption agency the relevant foreign authority has (iv) confirmed in writing to that agency that the child is or will be authorised to enter and reside permanently in that foreign country.

25. It was accepted on all sides that paragraph 10(b) (iv) was not satisfied, and Miss Platt was able to argue, with impeccable logic, that since the confirmation identified in paragraph 10(b)(iv) had to be obtained prior to the making of any order under section 84, the judge had simply had no power to make the order, and should not have done so.
26. Furthermore, at first blush, it appeared that Mr and Mrs C were caught in a classic double bind or Catch 22. Confirmation under paragraph 10(b)(iv) was required before an order under section 84 could be made: but the United States Embassy had, it seems, made it very clear to Mrs. C that it would not issue a visa enabling PG to enter the United States unless and until the applicants could produce an order under section 84 demonstrating that they had exclusive parental responsibility for PG.
27. The judge's solution to the problem posed by paragraph 10(b)(iv) was, as it seems to us, simply to override it. Although he set out the terms of the Regulation, he dealt with them summarily in a few sentences at the very end of his judgment.

This leaves only apparent breach (sic) of paragraph 10 of the regulations. I am satisfied from the evidence that I have received from a number of sources including PG's guardian that to give effect to paragraph 10 at this stage would represent an impossibility in that the US authorities would not commit to an immigration decision prior to the making of a section 84 order. If that is so and were to bar the success of an application of this nature then it would bar any similar applications involving US citizens. Moreover, as this is in any event subsidiary legislation it has to give way to PG's right to respect for her family life with the Cs.

28. Counsel for AG argued that the Judge's approach could be supported if the regulations were read as containing an element of judicial discretion. His argument ran along the following lines. Section 3 of the Human Rights Act 1998 (HRA 1998) required the court to read and give effect to both primary and secondary legislation in a way which is compatible with Convention rights. In the instant case, PG's ECHR Article 8 rights to respect for her family life were engaged, and if Mr and Mrs C and PG were indeed caught in the Catch 22 described in paragraph 26 above, the legislation - which plainly envisaged children being sent abroad for adoption – was frustrated and incapable of being put into effect. Parliament could not have intended such an outcome, and the only way to resolve it was to read paragraph 10(b)(iv) of the Regulations in such a way as to enable the legislation to be implemented effectively and in compliance with PG's rights under ECHR Article 8.

Discussion

29. With great respect to the judge, we do not think that the approach taken in the judgment on this point is permissible and nor do we think it can be supported by the approach counsel for AG urged upon us. On the face of the legislation, the implementation of safeguards against the unregulated expatriation of children is legitimate, and both the Statute and the Regulations, are – on their face - what we can properly call "HRA 1998 compliant". In our judgment, the question with which we are confronted is a different one: - namely, is the legislation so drafted as to impose the Catch 22 which the parties have identified?
30. We do not think that it is. The first step is to examine what it is that regulation 10(b) requires. A first point is what is meant by "the relevant foreign authority" in this context? That phrase, defined in Regulation 2, as set out at paragraph 15 above, is only used in Part 2 of the Regulations. In relation to a child to be brought into the United Kingdom, it appears in Regulation 4(2) and (3) and Regulation 5. In relation to children to be taken out of the United Kingdom (as in this case) it is used in Regulation 10(b) and (c). By virtue of the terms of the definition, these references may be either to the foreign equivalent of an English adoption agency, or to a foreign governmental body. In most cases it seems reasonably clear which is meant. Thus, while we do not need to, and do not, decide this, it seems likely that the confirmation to be provided by the Secretary of State under Regulation 4(2)(a) is to be provided by a governmental equivalent. Coming to Regulation 10(b), it is obvious that, as regards paragraphs (i), (ii) and (iii), the entity is the foreign equivalent of an English adoption agency. It seems to us that it would be strange if a different body had to satisfy the requirement in paragraph (iv).
31. Elsewhere in the Regulations there are contrasting provisions with a somewhat similar subject matter. In Regulation 4(2), as already mentioned (quoted at paragraph 16 above), the Secretary of State (meaning the Secretary of State for Education and Skills) must issue a certificate to the relevant foreign authority about the child's prospective immigration status, but this may be in significantly conditional terms. In the realm of Convention adoptions, on the other hand, Regulation 31(c) imposes a precondition to the making of such an order, if the applicant, or one of them if the application is by a couple, is not a British citizen, that the Home Office has confirmed that the child is authorised to enter and reside permanently in the United Kingdom. So that confirmation is to be given by the Department responsible for immigration, and must be given in unqualified terms.
32. It seems to us that the correct reading of the Regulations is, first, that the confirmation which has to be given in order to satisfy Regulation 10(b)(iv) is to be given by the foreign equivalent of the English adoption agency, not by a governmental body, and secondly, that it need not be in absolute, unconditional or unqualified terms. We read it as requiring confirmation from the foreign body equivalent to an English adoption agency to the effect that, provided that all relevant procedures in the United Kingdom, and any adoption-related procedures under the law of the foreign state which are prerequisites to the child being allowed into that state are followed, then, from its knowledge and experience, the child will be authorised to enter the foreign state.
33. In the present case the "relevant foreign authority" for these purposes is an organisation in Illinois which we will not identify, but which we will call "the American Adoption Agency". Such an agency cannot, of course, bind the local immigration authorities, but it can speak from its experience. If that experience, or the advice it has received, gives it reason to believe that the child will be authorised to enter the foreign state (in the instant case, of course, the United States of America) if an order is made under section 84(1), that, in our judgment, would enable it to give the confirmation which is required under regulation 10(b)(iv), despite the understandable reluctance of the immigration authorities to commit themselves in advance.
34. There is in our papers an opinion from an American lawyer, obtained by the local authority, to the effect that, under American law, a child will be admitted to the United States of America if he or she has the status of an orphan. It would also seem from that opinion that the status of orphan includes children separated from both their parents involuntarily by the actions of a competent authority for good cause and in accordance with the laws of the foreign-sending country. The American lawyer adds that the parents of the child concerned must have been properly notified and granted the opportunity to contest such action, and that the termination of all parental rights and obligations must be permanent and unconditional. On that basis, PG would appear to fulfil all these conditions.
35. Since this is our analysis of the law, the question becomes: what do we do? We could allow the appeal, set aside the order and remit the case to the judge to reconsider it in the light of any further evidence. We have, however, decided that the better – and, we hope, speedier - course is to adjourn the appeal for a period of 28 days, with liberty to any party to restore it before that period has elapsed. We propose to invite the local authority and the guardian to make a further approach to the American Adoption Agency, as the relevant foreign authority, to enquire if that organisation is able to provide the level of confirmation which we think necessary to satisfy paragraph 10(b)(iv). On any adjourned hearing, we would be prepared to entertain an application to adduce fresh evidence, and if satisfied that the fresh evidence fulfils the requirements of paragraph 10(b)(iv) we would dismiss the appeal and confirm the judge's order.
36. Miss Platt, who conducted the appellant's case with appropriate moderation, was prepared to accept that whilst there may have been other breaches of paragraph 10 of the Regulations, these were either rectifiable or immaterial, and she takes no point on them. We think that was the right approach. We remain of the view, however, that the safeguards put in place by the 2002 Act and the Regulations are there for a legitimate purpose and are not to be ignored. It would, we think, therefore be appropriate for the local authority and the guardian to satisfy us, on the next occasion, that all the relevant provisions of the Regulations have been satisfied.
37. A good example of the shortcomings identified in paragraph 36 above relates to the failure to comply with regulation 10(c). No particular attention seems to have been given to this before the judge. We were told by Mrs C that there would be no problem about confirming that both she and Mr C would accompany PG on her journey out of the United Kingdom and into the United States of America and the State of Illinois. If written confirmation of this was lacking before the judge, it is a deficiency that can readily be rectified, and this should be done before the adjourned hearing of this appeal.
38. If no further progress can be made within the next 28 days, we will reconvene for further argument. We very much hope, however, that this will not be necessary. The evidence – both from this country and from the United States of America - is overwhelming that PG's best interests throughout her minority would be best served by being adopted by Mr and Mrs. C in America.
39. For the avoidance of any doubt, we give permission for a copy of this judgment to be shown to the American Adoption Agency and to the relevant American immigration authorities.